A family court off-ramp if we care about the litigants | Joel Miller

By Joel Miller

Law360 Canada (September 19, 2023, 10:40 AM EDT) --
Joel Miller
Joel Miller
The first four parts of this series (see below for links) looked at how game theory analysis shows that family court is the place where failed or unexplored settlement opportunities go to fight in a system that encourages short-term thinking that’s contrary to a party’s long-term goals and works against meaningful restructuring of the lives of separated families.

Now we’ll turn to two suggestions that modify what we already have to make the family law process more constructive. This deals with respect to matters that have reached court after efforts to settle, if any, have failed.

Not all parties in a family law dispute want to work towards a co-operative resolution of their issue. If both did, the matter would have been resolved before getting to court. And there are complex family law cases requiring a full, vigorous hearing to be resolved. These people and cases are the lifeblood of family litigators. But even more are the people caught in the court system who would value an off-ramp if it was readily available. Here are two suggestions.

1. I will if you will

This has parties sign a document when they file their first court document checking off yes or no to the question, “Would you be willing to try mediation if the other party would also be willing?” The answer would be confidential and out of any public filing, but if there was a yes match the parties would be transferred to a court affiliated mediator.

This isn’t compulsory mediation. It allows a party who is uncertain about what the other party thinks, or a party who knows that mediation was already refused, to answer yes, just in case the other side hadn’t considered it or has changed their mind. 

The idea is that more people are likely to answer yes if their answer is confidential and the other side might surprisingly answer yes. The use of existing mediation services would increase and shift the inevitability of a confrontational court battle towards a co-operative resolution. Diverting court resources to expanded mediation instead of litigation would be a cost saving to the government and a cost saving and social benefit to litigants. What’s to lose, other than the litigation fees?

2. A judge-centric alternative: Binding judicial dispute resolution

Ontario’s Binding Judicial Dispute Resolution (Binding JDR) project, an existing pilot project, is the best kept secret in Ontario. (Check out the Practice Advisory Concerning the Superior Court of Justice’s Binding Judicial Dispute Resolution Pilot Projects, effective May 14, 2021, and SCJ Updates Practice Advisory for the Binding Judicial Dispute Resolution Pilot Project, effective Aug. 1, 2023.)

The Practice Advisory explains, “In Binding JDR, the judge meets with the parties (and their lawyers, if any) to explore possibilities for resolution. Each party is expected to explain their proposal to resolve the outstanding issues as well as the key facts that support their position. If the parties cannot reach an agreement, the judge will hear from both parties regarding the orders that they are seeking. The judge may ask questions and request additional information from the parties, if necessary, to reach an informed and fair decision. The judge will also be able to hear anything that they consider important and relevant to the issues that need to be decided, regardless of the formal rules of evidence. At the conclusion of Binding JDR, the judge will provide a final decision on all outstanding issues, including those that have been resolved on consent.” [Italics added.]

Binding JDR is judge-centric but not rules-centric. The judge may hear anything the parties feel is “important or relevant … regardless of the formal rules of evidence” to “reach an informed and fair decision.” [Italics added.] This is no longer a zero-sum game without information about the other party’s position or intentions. It doesn’t require, but allows, lawyers. It doesn’t focus on proof over truth. Without the formal rules of evidence applying, the judge is able to ask whatever they feel is relevant to get to the bottom of the issue and has the option of a creative solution, designed to resolve both the issue at hand and assist in dealing with future issues.  

There’s no cross-examination with the potential, or fear, of abusive questioning, no witnesses, and it’s currently an opt-in process subject to approval by a judge. The hostility and negativity of our traditional adversarial court hearing is eliminated or substantially reduced.

If lawyers encourage this process, parties will see what they can agree upon to identify what needs a judge’s input in a non-adversarial setting. “The expected benefits of this pilot are quicker, simpler and less costly processes to obtain a final order for straightforward family law disputes.” It’s a cheaper, faster process focused on a fair result without the damaging aspects of traditional court. What’s wrong with this?

Use a two-track system

The suggestion is to make Binding JDR a full partner process and available as a gateway decision before any non-emergency litigation is commenced, as well as an off-ramp available at any time by motion to a judge. Binding JDR has “been developed to provide a streamlined way to reach a final resolution of family law cases, consistent with the objectives of the Family Law Rules as expressed in subrules 2(2) to 2(5).” So, let’s make using it an essential first question or something a judge can decide later in the interests of the parties and judicial efficiency.

The pilot exists and has been working. It’s for basic cases with a limited number of issues and requires appropriate financial disclosure. Although its availability has just been expanded, the take-up is still small even though a huge number, perhaps the majority, of family law cases fit into this category. Especially if the parties understand that by dropping some of the issues and focusing on what still needs a judge, they can avoid the traditional adversarial process, saving them and the system time and money and avoiding unnecessary hostility.

This isn’t appropriate for every case. But thinking every case needs the rules that complex cases need isn’t appropriate for non-complex cases, either. This judge-centric process uses existing facilities but requires less court time and cost for the parties and the system. And it focuses on the needs and values of the parties over those of the professionals serving them.

This series previously quoted writer Upton Sinclair as writing that “It is difficult to get a man to understand something, when his salary depends upon his not understanding it.” The problem is that some will feel it’s not in a lawyer’s financial interests to promote Binding JDR, other than to get a few low-fee cases off their hands. But if the purpose of the family justice system is to resolve issues for parties, to optimize outcomes for divorcing people rather than to provide jobs for lawyers, Binding JDR as part of the system is obvious.

We need to vigorously promote this to lawyers and enthusiastically inform the public about the benefits of this option. Reminders about this need to be part of every family law conference. The Law Society of Ontario should endorse this as an equal partner to the adversarial court process and show that the profession encourages people to use it. Binding JDR should be seen and encouraged at every stage of the family law process as a best-choice option if at all possible.

The traditional adversarial system will always be with us. There will always be complex cases, parties with resources unwilling to resolve matters easily if they can outspend the other party, and parties determined to fight to the end instead of being reasonable. But why should our system give those people the right to force the other into costly and time-consuming litigation in a divisive and debilitating system as a strategy? The “which track” motion will help balance the field by presenting appropriate cases with a more sensible option. That may impact some lawyers’ fees, but whose interests should be our main priority?

When we see the system that’s damaging to the long-term interests of parties and know that there is a judge-centric alternative, not bringing that to the centre of client considerations is either wilful blindness or deliberate insistence on preserving a system because it benefits the practitioners without regard to whether it benefits the parties.

The family justice system isn’t there to serve us. Limiting client options to what gives us the biggest payment isn’t what lawyering is supposed to be about. There’ll still be plenty of clients and matters for the traditional system to handle through the adversarial track. If for no other reason, offering the Binding JDR track option should be seen as a consumer protection issue.  

Neither of these proposals “burn down the barn to replace it” or involve inventing anything new. Both are already inside the tent of things we do but need to be moved to the centre of our system and not marginalized, so we can optimize the outcome for our family litigants.

This is the final part of a five-part series. Part one: Family law shouldn’t be a game — but it is; part two: How coercive and divisive is family court? Let us count the ways; part three: ‘Tricks’ the family law system lures parties into using once in court; part four: More ‘tricks’ foisted on family law litigants.

Joel Miller is a retired former partner with Ricketts, Harris, chair of their family law group, and founder of The Family Law Coach. He was an instructor at Ontario’s Bar Admission course and a speaker at various legal conferences. He is currently writing a book to help self-reps succeed in family court.

The opinions expressed are those of the author and do not reflect the views of the author’s firm, its clients, Law360 Canada, LexisNexis Canada, or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.

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