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You thought WHAT about court?

September 7, 2016

Couples in Ontario using the family court to separate must attend a Mandatory Information Program (MIP), before their first court appearance. The program is co-presented between a mental health professional and family law lawyer. The information provided is tightly scripted by the Ministry of the Attorney General and highlights issues faced by separating couples and children and advises of the court process as well as alternatives to court.

I am on the panel of presenters of this program and have presented likely several dozen times by now over the past few years.

It is striking to learn from those in attendance how little they knew prior to initiating a court action. Common myths include believing:

  1. Their issue would be immediately heard and a Judge would quickly issue an order;
  2. That a person can easily present their case on a one-sided basis without the other person attending;
  3. That a person could just appear and give spoken evidence with little to no paperwork;
  4. That if they presented their case clearly, the judge would find in their favor;
  5. That their former partner wouldn’t mediate and/or alternate dispute resolution services are not for them;
  6. That once they have an order in their favor, matters will be settled and the other person will fall into line.

 

Oh what myths!  More to the point:

  1. There are numerous meetings (called conferences) that take place prior to a trial;
  2. Those meetings are typically many months apart, so if a matter actually goes to trial, the trial may not be scheduled for well over a year from the beginning of the court process;
  3. That each time you appear at court you will be encouraged to resolve matters between yourselves;
  4. That only in a dire emergency will a court hear an issue on a one-sided basis in the absence of the other person;
  5. That while everyone believes they will win their case, somebody is going to lose and you never know in advance who that will be;
  6. That people unsatisfied with court orders (the loser) may not follow through appropriately with what is required, if at all, hence the conflict continues;
  7. That court often becomes a revolving door when the dissatisfied person seeks to return the matter believing they have new evidence;
  8. That those alternative dispute resolution strategies will be used to different degrees throughout the court process;
  9. That on average, 97% of matters DO NOT GO TO TRIAL because they are resolved by processes such as mediation along the way.
  10. Agreements reached voluntarily (even if you don’t totally love the agreement) tend to be better followed and longer lasting that court orders.

 

Part of the information the family law lawyer provides at the program is about the duty of the lawyer to inform people about the alternative dispute resolution strategies such as collaborative law and mediation. Thereafter we present information on a range of alternate dispute resolution strategies.

After each session there are always several people who tell us that their own lawyer never advised of those strategies and these people were genuinely interested in learning more and seeking those services.

Big lessons here.

  1. If you are in the midst of a separation or divorce or contemplating a separation or divorce, think carefully about how you want to go about resolving financial and parenting decisions.
  2. When you choose a family law lawyer, consider choosing one who is actually trained in alternatives to going to court such as collaborative law and/or mediation. Their training in these approaches will better equip them to explain and determine the appropriateness for you.
  3. Seek the input/support of a trained and experienced mental health professional early in the process. Learn how to best support yourself and your children in the process and for life thereafter.
  4. Don’t assume your former partner won’t use alternate dispute resolution processes and don’t fight about their disposition if they agree to attend yet tell you they won’t change their demands. Go anyway without arguing about your respective positions. Most persons enter into collaborative law and/or mediation wanting what they want. You have to let the process unfold.  Typically with the input of the service provider peoples’ positions soften and they learn how to better communicate, negotiate and resolve differences. Therein is the magic of these services.

 

By the way, the other lesson for people involved in a court action – the moment you resolve matters… court ends.

I am Gary Direnfeld and I am a social worker. Please check out my counseling and peacemaking services and then call me if you need help with a child behavior, relationship issue or upsetting life event.

https://garydirenfeld.files.wordpress.com/2013/07/gary-feb-12.jpg?w=200&h=301

Gary Direnfeld, MSW, RSW

gary@yoursocialworker.com
http://www.yoursocialworker.com

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Gary Direnfeld is a social worker. Courts in Ontario, Canada, consider him an expert in social work, marital and family therapy, child development, parent-child relations and custody and access matters. Gary is the host of the TV reality show, Newlywed, Nearly Dead, parenting columnist for the Hamilton Spectator and author of Marriage Rescue: Overcoming the ten deadly sins in failing relationships. Gary maintains a private practice in Dundas and Georgina Ontario, providing a range of services for people in distress. He speaks at conferences and workshops throughout North America.

If your relationship is faltering, then set it as your priority.

Read: Marriage Rescue: Overcoming ten deadly sins in failing relationships

 

2 Comments
  1. Gary, that is a great program that you have in Ontario. Thanks for sharing this.
    In the US, one of the biggest problems, which is a concern for everyone from the US Supreme Court down to the lowest local court, is the lack of access to justice. Perhaps the greatest impediment is the public’s lack of knowledge, just as you described. All attorneys should be informing their potential new clients of the alternatives to traditional litigation. In Florida, there is a comment to our Rules of Professional Conduct that says in some circumstances, an attorney may be required to tell the client about alternatives to litigation. I don’t think that is a high enough standard. In the new Collaborative rules that I will present to our Supreme Court in a few months, the Collaborative attorneys will be mandated to tell their clients about the different alternatives, so the client can truly make an informed decision how to handle her or his case. I am hopeful that our Supreme Court will eventually apply that mandate to all attorneys. The public needs to know that there are alternatives to traditional litigation, which is the only choice that most family attorneys give their clients.

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