C. Recent Trends in Family Dispute Resolution

• Author: Julien D. Payne - Marilyn A. Payne
• Pages: 134-135

Page 134

Many lawyers and judges have now joined their critics from other disciplines by acknowledging the inefficacy of the law in resolving parenting disputes between separated and divorced spouses. The limitations of the law in resolving the economic consequences of marriage breakdown have been more cautiously acknowledged by the legal profession. However, the emergence of statutory provisions, regulations, and rules of court governing such matters as mandatory financial disclosure, case management, mediation, independent expert assessments, pre-trials, and formal offers to settle manifest a growing realization that litigation should be regarded as a last resort in the resolution of all family disputes. These and other developments signal a need for family law to focus much more on processes for dispute resolution. Sections 9 and 10 of the Divorce Act⁴pay lip service to the potential benefits of counselling, negotiation, and mediation as processes for resolving disputes arising on divorce but do little to foster the use of these processes. More far-reaching statutory provisions are found in provincial legislation, such as section 3 of the Ontario Family Law Act,⁵which endorses voluntary mediation as a process for resolving any matter falling within the ambit of that Act, including spousal support, child support, and property entitlements on marriage breakdown.

To assert the truism that law and lawyers, like all other systems and professions, can lay no claim to omniscience in the resolution of family conflict is not the same as saying that law and lawyers have no contribution to make. We should not overlook the fact that the viability of dispute resolution processes, including negotiation, mediation, and arbitration, cannot be divorced from the legal process as the ultimate means of resolving intractable disputes. Nor should we forget that lawyers, in practice, on the bench, in federal and provincial legislatures, and in academe, have been at the forefront of welcome reforms in promoting dispute resolution processes. To take only one example, the Alberta Court of Queen’s Bench has engaged in various judicial dispute resolution processes as an alternative to the conventional trial for more than ten years. These judicial dispute resolution processes include judicial mediation, mini-trials, summary trials, case management, and pre-trial conferences.⁶British Columbia has always been at the forefront in promoting recourse to extra-judicial...