The British Columbia Provincial Court is implementing a new regime for resolving family law disputes beginning this week. The new regime involves making dispute resolution the first step in the court process. The BC court announcement states that: “The early resolution model includes new, simpler forms and procedural changes that help set a collaborative tone. For example, instead of making their first appearance in a busy, adversarial courtroom, people attend a family management conference with a judge as the first step in court proceedings”. This new model is being implemented first in the regions of Surrey and Victoria, BC.
I welcome this change. I hope to see this model in more jurisdictions across Canada. We should be focussing on dispute containment rather than escalation at the beginning of litigation. Currently, the adversarial process lends itself more to the ballooning of legal disputes than de-escalating disputes. Legal theorist Richard Susskind poignantly proclaims in his book “Online Courts and the Future of Justice”:
- Courts should be concerned with dispute containment as much as it is about dispute resolution.
- Once in the courts, there are institutional incentives embedded deeply in both the legal profession and the courts to encourage escalation rather than containment of disputes.
- The court system often intensifies and exacerbates disputes rather than keeping their tone and scale commensurate with the nature and value of the disagreement.
- It is a damning indictment that most litigators and judges would strongly discourage their friends and families from becoming embroiled in litigation.
By placing mediation at the beginning of a dispute and having a judge try to set a cooperative tone, we may see a move away from escalation to the containment of disputes.
(Views are my own and do not represent the views of any organization.)