Out-of-court resolutions offer more privacy, control

By Sharon Silbert

The benefits of resolving family disputes out of court go beyond the basic elements of privacy and control in allowing parties the opportunity to work as a team instead of against one another, says St. Catharines family lawyer and mediator Sharon Silbert.

Mediation will offer the family more control over the outcome and timelines while also saving costs, she says.

“It gives parties the opportunity to address some of the related issues that are of concern to the individuals going through the process but are not strictly ‘legal’ issues,” says Silbert, of Silbert Family Law. “It also allows people to avoid an adversarial process that often exacerbates conflict (adding fuel to the fire) and instead work towards a mutually acceptable solution.”

Where there are children involved, and the parties will have continued contact after the separation, it provides an opportunity for them to start learning to work together, she says.

Out-of-court resolutions also benefit the justice system by reducing the number of cases working their way through the overburdened family courts, says Silbert.

There are several important differences between consensual resolutions and litigated cases, Silbert says, noting the largest distinction is the identity of the decision-maker.

“A court order is a decision that is imposed on a family from the outside, by a judge. When a judge is asked to rule on a matter, very important decisions that will have a profound impact on the lives of the individuals whose family is in transition are taken out of the control of those very individuals,” she says.

“In some cases this is absolutely appropriate, even essential, because the parties are not in a position to be able to make those decisions for themselves, for example, because there is a significant power imbalance between the parties, one of the parties is struggling with an addiction, or there are serious mental health concerns. However, in the majority of cases, the fact that a family is undergoing a transition such as a separation or divorce does not in itself render its members incapable of making informed decisions for themselves. The right kind of professional support can help them do so effectively.”

Even when court cases are settled before trial and turned into orders on consent, the terms of settlement are limited to outcomes that fit within the boundaries of what a judge would be empowered to order under the applicable legislation, says Silbert.

“In some cases, this could be seen as a positive, protective aspect of the family justice system. But in other cases, it might prevent the parties from reaching the best possible solution, because they must choose from a limited range of options and do not have free reign to craft solutions that will best meet the unique needs of their families,” she says.

“The fact that the parties (and their lawyers) have a greater degree of freedom to be creative is one of the great features of consensual dispute resolution in family law.”

When a family is dealing with a dispute, what should they consider in deciding whether pursue mediation or litigation?

Silbert says when individuals facing family law issues are trying to decide which process option will be best for them, there are a number of things they should consider, including:

– whether they would like to maintain control of the process and not have a judge decide what is best for their family;
– whether they see the goal of the process as working together to create a “win-win,” or whether they have a “win-lose” mentality;
– whether they feel safe talking to the other person, either with lawyers present or through a mediator;
– whether they feel they can maintain a tone of respect in the presence of the other party;
– whether they are willing to listen to the other side of the story, and accept that both parties’ views deserve consideration;
– whether they feel they will be able to resist pressure to agree to something they don’t think is fair;
– how important privacy is to them;
– how quickly they would like the dispute to be resolved; and
– how much money they are willing and/or able to spend on the process.

“Another key thing to keep in mind is that negotiations are voluntary, and require two willing participants, whereas it only takes one person to start court proceedings and compel the other party’s participation,” says Silbert.

“Regardless of the method that is ultimately chosen, it is crucial for the participants to make sure they have an understanding of their rights and responsibilities so that they can be confident that any agreement that they reach will be made on an informed basis, and will be likely to last.”