How Changes in the Divorce Act Can Resolve High-Conflict Disputes

This article was originally published on the DivorceMag.

Here’s how the changes to the Divorce Act can help mitigate the financial and emotional impact on separating families, especially when it comes to high-conflict disputes.

High-conflict disputes during divorce naturally lead to a longer process and more expensive bills than those that are more amicable. But what many people don’t realize is that even in divorce cases that are not so acrimonious, the process is often longer, and the legal bills higher, when they litigate their cases in court rather than if they had chosen a non-court process. People who separate should know that non-court processes such as mediation and collaborative law are likely better options to resolve their divorce even during high-conflict disputes.

People may be under the impression that mediation and collaborative divorce only fit situations where everyone gets along well and engages courteously during the whole process. However, they can actually be ideal methods for resolving contentious matters. Instead of engaging in an adversarial system that can fuel a high-conflict personality type, the less-combative collaborative and mediation processes help to de-escalate conflict and to move to resolution. In addition, these processes keep financial details and personal issues off the public record and out of the limelight.

In fact, sweeping changes to Canada’s Divorce Act that came into effect in March of 2021, included the revamped “duty” for separating couples to try family dispute resolution processes rather than go to court. Here’s how the changes to the Divorce Act can help mitigate the financial and emotional impact on separating families, especially when it comes to high-conflict disputes.

How Non-Court Processes Can Help Resolve High-Conflict Disputes During Divorce

Efficient Dispute Resolution Process

Unlike the combative and linear structure of a court proceeding, collaborative divorce is designed to approach the resolution of issues in an efficient and creative manner, inspired by the Harvard negotiation models. It also contains process-design steps to promote efficient and full disclosure. The professionals who train in this methodology model respectful communications and interactions, which renders the process less expensive.

Mediation is another efficient non-court method, where separating couples may participate without lawyers if they want to. This is in contrast to collaborative negotiation, where lawyers are always present. While having just one professional to guide the family may prove to be cheaper, many situations have complex issues that require more than one advisor at the table. But even if that is the case, when families choose mediation, they show their commitment to try to make it work, which usually fosters faster settlements. By contrast, people who initiate a court case at the beginning of their separation send the message that cooperation and compromise are not a priority, which sends a negative signal from the outset.

Trained Collaborative Team

The collaborative community involves several professionals that consist of lawyers, family professionals (often social workers), and financial professionals for the purpose of a streamlined exchange of financial disclosure. All teams have at least two lawyers and often also include a family professional and financial professional.

The collaborative professionals are trained to negotiate using interest-based techniques, which is instrumental in dealing with high-conflict disputes. For instance, instead of entrenching the high-conflict personality in a particular position that could pose as a roadblock to resolution, through extensive training, the collaborative professionals are equipped at managing conflict in a way that allows the parties to be able to hear each other out, evaluate several avenues of possible agreements, and arrive at their own solutions.

Interest-based skills possessed by lawyers trained in this methodology are very conducive to helping families in high-conflict situations, especially when children and/or businesses are involved.

Mediation

Mediation is different from collaborative negotiation. The training and style of mediators vary. Be sure to interview possible mediators about their style and what they bring to bear in high-conflict cases. You may be pleasantly surprised that many mediators are well trained to handle difficult cases including domestic violence and power imbalances.

In several difficult cases, it may be important for parties to have their own lawyer as they go through the mediation process.

No Imposed Outcome

Generally, people prefer having a role in the outcome of their case. Research shows that people do not respond well to having the outcome imposed upon them, which is a key element of the court process.

This is another important feature of processes such as collaborative divorce and mediation because participants in these processes retain the full power to decide how their case will be resolved. It is known that there is more adherence to agreements when parties contribute to the outcome and there is less adherence when a judge has imposed outcomes on the parties.

Based on data from Canadian Bar Association, collaboration and mediation both ranked highly in terms of generating good results: 90 to 94 per cent in client’s interest (compared to around 30 per cent with litigation) and 85 to 99 per cent in children’s interest (compared to 30 to 40 per cent with litigation).

Cheaper and Faster

Based on the three advantages above, using the mediation and collaborative processes for a high-conflict divorce could lead to a shorter process and cheaper legal bills. This is supported by the same data from CBA:

Process Typical time required for low-conflict disputes Typical time required for high-conflict disputes Average bill for low-conflict disputes Average bill for high-conflict disputes
Collaboration 5 months (range 1-18) 14.8 months (range 2-36) $6,269 (range 1-30K) $25,110 (range 5-100K)
Mediation 4.8 months (range 1-24) 13.7 months (range 1-60) $6,345 (range 630-30K) $31,140 (range 630-250K)
Arbitration 6.6 months (range 1-15) 14.8 months (range 1-24) $12,328 (range 2.5-50K) $40,107 (range 7-100K)
Litigation 10.8 months (range 1-36) 27.7 months (range 6-60) $12,395 (range 2-75K) $40,107 (range 5-625K)
Note: The data is collected nationwide. Divorces in Ontario generally take up more time and are more expensive.

The table above identifies the typical durations of disputes, with the range of durations, as well as the typical bills for legal fees. Overall, mediation and collaboration appear to have significantly lower total costs to parties for both low- and high-conflict family law disputes.

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