The changing landscape of family dispute resolution in Canada

Introduction

The issue of access to justice has been at the forefront of family justice system and even led to various recent legislative reforms. Improving access to efficient and affordable means of resolving disputes between families in order to foster an “equal” and “just” society has been a real challenge. This article explores the changing role of various alternative family dispute resolution processes in improving access to justice, and the combined impact of the recent amendments to the Divorce Act and Covid-19 pandemic in changing the landscape of family dispute resolution (“FDR”) in Canada.

A continuum of dispute resolution processes

The concept of “a continuum of dispute resolution processes” is key to bridge the gap between the theory and practice, but it is also a useful and practical tool for family law practitioners.

The advantage of describing dispute resolution as a continuum, as John Kleefeld¹ states, is that “it reminds the disputants that processes are not mutually exclusive, that one blends into another, and that there is no reason in theory or principle why the processes cannot be mixed and matched to meet the needs of the parties and the dispute.” The exploration of a gradation of various dispute resolution processes, as outlined by Kleefeld and Srivastava² in their “command-consensus continuum,” classifies dispute resolution processes according to two principles: (a) by degree of participant control; and (b) by openness to public scrutiny. The spectrum of a command-consensus table, as created by Paul Emond³, categorizes two dispute resolution models along a continuum, namely: (a) the Consensual Dispute Resolution Model involving a range of options such as: negotiation, conciliation, mediation; and (b) the Command Dispute Resolution Model which includes: arbitration, adjudication, regulation and legislation. The degree of participant control changes in a consensual model as compared to a command model; ranging from a high degree of participant control in consensual processes, moving to less control in the adjudicative and highly regulated processes. The selection of appropriate dispute resolution process is important as a means of resolving the issues between the parties, which could be central in giving access to justice by offering appropriate dispute resolution methods for time- and cost-effective resolution and by mixing and matching the continuum of processes suitable to their needs.

The presumption of legitimacy attached to the outcome of each of these processes could be an instrumental consideration for a professional. For example, the parties could agree to the process of mediation and agree to waive or delay the right to pursue certain legal remedies if there is a common understanding between the parties. However, in cases involving domestic violence where the safety of a party is at stake, a formal court process such as obtaining a restraining order and/or other relief may be necessary.

This author argues that the concept of a “continuum of dispute resolution” is key in order to guide FDR practitioners in making informed choices about an appropriate method for resolving disputes, rather than compartmentalizing them as separate and independent processes. FDR professionals are training themselves in various processes to settle family disputes.

The changing family law needs of Canada’s population

For decades, Canada’s social fabric has been changing with the influx of immigrants and refugees. Along with that, the once “nuclear” family is quickly disappearing. In my family litigation and mediation practice, working with marginalized populations of immigrants, refugees, and non-status women, along with their children, I have noticed that if their experiences of oppression and intersectional needs and the resulting vulnerabilities are not factored into the family dispute resolution process, the outcome is not fair or sustainable.

One of the biggest challenges faced by the family justice system is finding a satisfactory process that is both efficient and cost effective. In family court, the parties continue to return to court in order to seek variance of court orders, while the never-ending issue of the increase in unrepresented and/or self-represented litigants persists. It derives to a large extent from the “win-lose” dynamic of the adversarial system, which results in parties not having “buy in” to judicial decisions. Applying a continuum of dispute resolution processes in the practice of family dispute resolution may mean that family court cases could be complemented by mediation at various stages. Although some parties could mediate either before commencing litigation, or at an early stage of it, others may not be prepared to do so for various reasons. As litigation proceeds, many individuals are adamant about having their “day in court,” but may be more willing to attend mediation when they face “litigation fatigue” or need to “save face.” As Kleefeld⁴ et al. noted: “The ‘one size fits all’ ideology of the common law legal system that assumes that all disputes can and should be dealt with through adjudication appears both limited and unrealistic. The assumption that every conflict should and can be resolved by the application of rules by a third party ignores the complexity and variety of conflict and our complex and varied responses to it. Although the adjudicative process of courts and tribunals remains an important mechanism for resolving some type of conflict, there are many other alternatives...”

The other important aspect as an FDR practitioner is designing the process and disputant’s control over the process. In inter-party negotiation, the parties reach their own settlement on terms acceptable to them. In mediation, the parties yield some control of the process to a third-party mediator but retain control over the outcome. However, in family mediation, screening for suitability for mediation is crucial to understand presence of domestic violence, risk assessment and balancing of power. It requires skill building of the mediator. Kenneth Cloke⁵ in his book Mediating Dangerously: The Frontiers of Conflict Resolution, has introduced the concept of the mediator being “omni-partial” i.e., on the sides of both parties rather than a traditionally described term as a “neutral”.

In 2015, the United Nations introduced 17 Sustainable Development Goals (“SDG”) for sustainable future and prosperity to everyone in the world by year 2030. SDG 16 focuses on “peace, justice and strong institutions” and the official wording of this goal is: “Promote peaceful and inclusive societies for sustainable development, provide access to justice for all and build effective, accountable and inclusive institutions at all levels.”⁶ This goal recognizes the crucial links between conflict, peace and prosperity. The continuum of resolution processes and command-consensus models could guide practitioners in selecting appropriate processes and thus in achieving SDG 16. It calls for strong, transparent and inclusive institutions as weak institutions could limit access to justice and result in insecurity.

Amendments to the Divorce Act

On March 1, 2021, the amendments to the federal Divorce Act as per Bill C-78⁷ came into force. The changes in the Divorce Act will make it obligatory for lawyers to encourage clients to attempt to resolve matters through family dispute resolution processes such as mediation and collaborative law, and inform their clients of the family justice services known to the legal advisor, unless they are clearly inappropriate. This new duty imposed on lawyers by amendments to the Divorce Act and the impact of clogging of the courts as a result of the Covid-19 pandemic would certainly change the legal landscape of FDR. The key message of this amendment in the Divorce Act is aimed at encouraging the use of processes other than court, i.e., the consensual dispute resolution options which have the potential to be more time- and cost-effective than litigation, if appropriate. In view of that, I strongly believe that the continuum of processes will inform lawyers to advise their clients about the best process of dispute resolution at any given stage of the dispute.

Distinctions between conflicts and disputes: implications for the management of issues

The work of Professor John W. Burton ⁸, in relation to applying our knowledge to understanding and dealing with conflicts in the context of human relationships is well regarded in dispute resolution circles. Burton distinguishes the terms “conflicts” and “disputes” that we sometimes use as synonyms. He differentiates these two phenomena based on their nature and duration. According to him⁹, “disputes” are short-term disagreements that are relatively easy to resolve. Disputes are disagreements that involve negotiable interests. Disputes can be settled through negotiation, mediation or through court processes. If the right process is used, both parties can reach at a mutually satisfactory settlement. On the other hand, “conflicts” are the long-term, deep-rooted problems that involve non-negotiable issues and are resistant to resolution. Burton recognizes that if left unchecked and unexplained, a dispute can easily turn into a conflict, but conflicts rarely revert to disputes without intervention.

Felstiner, Abel and Sarat describe the process of turning a problem into a dispute as “naming, blaming, and claiming.”¹⁰ The authors describe “unperceived injurious experiences” of people and they argue that motivation and needs of a particular disputant are critical to whether the original problem will turn either into a formal claim, or if it will be avoided (i.e., remain latent). Thus, for a dispute resolution practitioner, the understanding and distinction between dispute and conflict allows the practitioner to effectively manage the issues and design the process. If it is a dispute involving negotiable issues, then the dispute resolution practitioner can focus on the needs of the parties involved in the dispute to manage and settle the issues. However, the parties engaged in conflict may not be willing to compromise their fundamental values. If the conflict has to be resolved, the solution has to reach beyond the parties’ interests. The practitioner has to identify and deal with the underlying causes of conflict also known as “peeling the conflict onion,” wherein the practitioner peels away the layers of interest, steadfast positions and digs deeper into the root causes of the conflict. The practice of peeling the “conflict onion” demands the practitioner simultaneously deal with emotions, focus on interests, and identify the needs of the parties. In view of that, the skill building of the practitioner is of crucial importance.

Conflict resolution has a much bigger mandate than simple dispute resolution. Although processes like mediation could be used to resolve both, for conflict resolution, the practitioner has to remain laser-focused and assume a creative problem-solving approach. Moreover, addressing the root causes of conflict may not be simple if it involves systemic issues that require either larger institutional or attitudinal changes in societal structures. Thus, certain conflicts involving clashes of fundamental values may not be “resolved,” and may need to be “managed.” As the word connotes, “conflict management” would involve only controlling, but not resolving a conflict. Although it may not be possible to resolve a conflict, certain steps need to be taken to de-escalate the situation, make it less destructive, volatile or violent. The goal of conflict management is to intervene with the intention of controlling the damage resulting from the conflict.

There are various terms used related to conflict and its impact. In “conflict management,” the situation is addressed. In “conflict settlement,” the behavior is addressed. In “conflict resolution,” root causes are addressed. And in “conflict transformation,” the parties are changed. Thus, understanding the difference between dispute and conflict further allows the practitioner to manage, settle, resolve or transform the conflict. In any event, the process has to capture the essence of complexity of the conflict and its root causes. For resolving complex conflicts, the process has to be complex as well to be effective. A simplistic process for a complex problem will not be effective and sustainable.

The term “intersectionality,” coined by Kimberlé Crenshaw in 1989, refers to a theory that informs us about how individuals are shaped by ways in which they intersect and interact with each other and systems of systemic oppression. In view of that, if the complexities of social and cultural contexts of the parties are not appropriately considered, the root causes of conflict will remain unresolved.

There is tension between conflict resolution and social justice and designing fair and transparent processes. Developing understanding about the nature of the conflict is always crucial. The blending of various dispute resolution processes allows us to break down the silos within the available range of family dispute resolution processes. Also, the impact of race, gender and cultural norms needs to be factored into the family conflict analysis.

According to Douglas Yarn¹¹, conflict is a state, rather than a process. People who have opposing interests, values, or needs are in a state of conflict, which may be latent (meaning not acted upon) or manifest, in which case it is brought forward in the form of a dispute. This is seen in domestic violence cases, particularly relationships involving coercive control.

“Diagnosis” of root cause of conflict

In his book The Conflict Resolution Toolbox¹², Gary Furlong has explained how a practitioner can develop a better understanding of what causes conflict, how conflict dynamics develop and effective strategies to deal with them. According to Furlong, to manage conflict effectively we must employ a two-step process. First, how we assess the conflict and second, what action we take to address it. Furlong further suggests that in every conflict, we use these two steps either consciously or unconsciously, but the effectiveness of managing the conflict will depend on how skilled we are at these two steps. Furlong proposes that the first critical skill a practice professional must have is the ability to “diagnose,” to determine the root cause of a specific problem, which he argues is split between theoretical work and clinical application of that knowledge in the field. The eight conflict resolution models in Furlong’s book are the tools that could help professionals get to the core of the root cause of the problem effectively. He states that diagnosis is about framing the conflict in a way that has coherence and makes sense. Furlong relies upon Christopher Moore’s¹³ idea that practitioners need models or “conflict maps”. Furlong maintains: “To work effectively on conflicts, the intervener needs a conceptual road map or ‘conflict map’ that details why a conflict is occurring, identifies barriers to settlement, and indicates procedures to manage or resolve the dispute.”¹⁴

Furlong further refers to Bernard Mayer, who describes conflict resolution models as essential for a practitioner in that they act as a “framework for understanding conflict” and “an organizing lens that brings a conflict into better focus… We need frameworks that expand our thinking, that challenge our assumptions, and that are practical and readily useable.”¹⁵ Furlong’s objective in introducing conflict resolution models is to assist a practitioner in becoming a “reflective practitioner.” Moreover, Furlong quotes Michael Lang and Allison Taylor’s book and notes that reflective practice is a: “Reflection is the process by which professionals think about the experiences, events and situation of practice and then attempt to make sense of them in light of the professionals’ understanding of relevant theory… it enhances the person’s ability to modify forms of interventions, and it may alter his way of thinking about the problems presented.”¹⁶

Reflection as the process of “learning how to learn” was identified by Chris Argyris and Donald Schon as to the growth of skill and ability: “The foundation for future professional competence seems to be the capacity to learn (Schein 1972). This requires developing one’s own continuing theory of practice under real-time conditions. It means that the professional must learn to develop ‘microtheories’ of action that, when organized into a pattern, represent an effective theory of practice.”¹⁷

Thus, for a practitioner, clear understanding of the dispute or conflict can provide the strategic direction.

Transformation from litigator to mediator

In my own professional journey, family mediation training made me feel that I was engaged in a constructive, creative and positive process during mediation. My spirit as a litigator was freed within the mediation process. However, my professional training and practice as a lawyer made my learning curve steeper to be a mediator. As I persisted and practiced more, I believe that I have become close to being a transformative mediator and become more creative in finding solutions in my litigation practice as well. I am able to resonate with and empathetically listen to people who are experiencing an intense emotion. Family mediation is a blend of complicated people at the most challenging time of their life. It is important that the mediator allow people to participate in the mediation process with dignity and do no harm. I remain extremely cautious and vocal about screening practices and if mediation is appropriate in any given case.

I will first examine the challenges faced as a lawyer in becoming a transformative mediator and then discuss what skills are needed to be an effective mediator.

How does the legal system understand conflict?

Kleefeld et al. discuss in their book how the legal system understands conflict¹⁸ and note that disputes that are both “blamed” and “claimed” are often referred to lawyers for conflict management. The substantive, procedural, and normative biases of the legal system, as well as the ideology of the legal profession, rest on a particular analysis of conflict. These biases are significant in further transforming the character of disputes. As a lawyer, I was indeed trained to understand conflict in a certain way and to examine it from the “prism of rules,” which meant that I viewed conflict as Kleefeld refers to it— as a “manifestation of deviant behaviour.” As a lawyer, I was also taught to focus on how to ensure that behaviour conforms to the rules rather than asking how and why the conflict arose in the first place. I learned during law school that “illegal” behaviour is deviant and rules will “fix” the conflict rather than examining the root causes of conflict. The rights-based model of the western world centered around individual struggles with people from the collective cultures where the individual is removed from being the only and most important entity. In family law, the adversarial rule-based system does not include extended families, religious and cultural norms and role of the community. As a result, the adjudicated outcomes are not always effective. Moreover, as a lawyer I form part of the family justice system which is a “reactive institution.” As such there is no role for the formal family justice professional to work on prevention, education or empowerment of individuals. Lawyers are trained to work in the old structure of the adversarial system, which is built on the mentality of win for your own client by making the other party lose. It does not leave much room for collaboration. Leonard Riskin’s¹⁹ concept of “lawyer’s standard philosophical map”²⁰ in legal education refers to the assumption of the conflict resolution outcome as win-lose proposition. He further describes that this map assumes that the disputants are adversaries and disputes may be resolved by a third party applying some rule of law. As Riskin points out, these assumptions are polar opposites, which underscore the utility of mediation, i.e., all parties benefit through a creative solution, where each agrees, and where the process is unique and therefore not governed by any general principle except to the extent the party accepts it.

When I was training as a mediator, I had to unlearn many things that I valued as a lawyer because mediation is not restricted by rules and regulations, but law provides the necessary legal framework of resolution. I learned not to be judgemental, to not demand some sort of documentary or other corroborative evidence, to not control the parties or invest myself in the outcome, but rather to listen with empathy, build trust with the parties, and encourage them to open up the lines of communication. I learned how to acknowledge a party’s feelings, to gauge what is hurting, to leverage the power of emotions and to facilitate difficult conversations between the parties and allow them to work through their conflicts.

Mediator’s role and skills

This section discusses a mediator’s role and the skills necessary in order to be an effective mediator along with a discussion regarding what mediation is in a nutshell.

Professor Martha Simmons in her book Mediation: A comprehensive client advocacy,²¹ defines mediation in a simple way —as a third-party assisted negotiation. That is, settlement discussions that bring in an outsider to help facilitate. She describes the role of a mediator as “having a central role in mediation” and as “the steward of the process.” She describes that as a neutral facilitator, the mediator’s job is to bring the parties and their representatives together to assist them in the negotiations. She suggests that the mediator can help by bringing subject matter expertise, providing some external authority to help clients see the benefits of settlement, helping achieve settlement by bringing such dispute resolution skills as active listening, reframing and caucus. Professor Simmons further delineates two types of mediations: evaluative mediations that mirror the litigation system where the mediator has to be a subject matter expert; and facilitative mediations, which are useful where a continuing relationship between the parties is desired and a mediator should be a communication and relationship expert.

Essential skills for mediators in facilitative mediation as described by Martha Simmons are “active listening” and “reframing.” Active listening enables the mediator to paraphrase what the mediator has heard and describe it in other words for the other party. Reframing allows the mediator to make the parties feel heard and understood. She notes the personal characteristics of a mediator ranging from gender to culture to language are important for the parties as well.

I believe that the mediator has to be aware of conflicts within themselves, their own biases and develop competence to deal with power struggles between the parties and open up a path from power to rights to interests.

Patricia Hill Collins and Sirma Bilge in their book Intersectionality²² assert that power relations are analyzed both via their intersections, for example of racism and sexism, as well as across domains of power, namely structural, disciplinary, cultural, and interpersonal. Consequently, mediators should be able to rephrase and shift debate into dialogue. Not only do mediators need to be skillful in asking questions so as to better understand the conflict, but mediators also need to allow parties to open up enough so as to have vulnerable conversations. More importantly, a key skill is to be inclusive and aware of how cultures and power dynamics interact and how same are linked to justice. Mediators have to motivate each party to listen to the other party’s views as well. If a mediator perceives any vulnerability in a party, it is incumbent upon them to assist that party in overcoming such a barrier and provide them with the tools for doing so.

Challenges of online dispute resolution: The fourth party

The Covid-19 pandemic initially forced the closure of courts, evolving to more limited access. The impacts are unprecedented. Consequently, mediators and other FDR professionals have been called upon to resolve family conflicts and adapt to online platforms. Online dispute resolution (ODR) has its own benefits and challenges. Mediators must now comprehend the role and function of the “fourth party,” that is, technology. The difference between in-person mediations and ODR is that with online communication, one loses the continuous flow of verbal communication, in addition to the loss of visual cues, body language and non-verbal cues. This results in a new juggling act for mediators in balancing competing interests and a further learning curve. Inevitably, mediators are now required to be skilled and competent in utilizing technology confidently and effectively.

Conclusion

Dispute resolution theory and practice must inform each other. An understanding of the root cause of conflict by the professional would lead the parties to having a sustainable outcome.

The Covid-19 pandemic has impacted the family justice system in a substantial manner. The lessons we learn from it will of course impact the post-pandemic world. It remains to be seen whether the family dispute resolution system will have been re-shaped in order to allow for non-litigation means to address conflicts once we are settled into the new normal.

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Archana Medhekar is a Certified Family Law Specialist and Accredited Family Mediator practicing in Toronto, Ontario. She can be reached at: amlaw@amlaw.ca.