13 May 2014

The Dispute Resolution Spectrum

Access to justice has become a critical concern of academics, practitioners, courts and governments over the last decade or so, arguably culminating in the final report (PDF) of the national Action Committee on Access to Justice in Civil and Family Matters, convened at the urging of Canada's Chief Justice. Part of the national conversation on this issue is the idea that the term "family justice system" includes more than court processes, and ought to include all means of dispute resolution and perhaps even the multidisciplinary social services that support separating and separated families.

This prompted me to think in a more organized manner about the dispute resolution mechanisms we currently employ in family law matters, about the traits they share in common, about their costs and about their efficiencies. At one end of the spectrum of options is negotiation, which offers the greatest opportunity for personal choice and self-determination at the least cost, and at the other end is litigation, which offers the least room for personal choice and comes at the highest cost:

Loss of Self-Determination Dispute Resolution Extent of Intervention Flexibility of Process Resources
Required
Probable Cost Inefficiency of Process
Negotiation Consensual, no intervention; locus of control internal to system Highly adaptable, no rules Some external supports, lawyers as needed ♦♦♦
Mediation Consensual, minimal intervention; locus of control internal with guidance provided by mediator Moderately adaptable, some rules Mediator, lawyers as needed, valuators as needed ♦♦ ♦♦
♦♦ Collaborative
Processes
Consensual, extensive intervention; locus of control internal with intensive guidance provided by team Highly adaptable, some rules, process-heavy Lawyers, coaches, financial experts as needed, child experts as needed ♦♦♦ ♦♦♦♦
♦♦♦ Arbitration Nonconsensual except for entry into process, extensive intervention; external locus of control Somewhat adaptable, many rules but may be determined by parties, process-heavy Arbitrator, lawyers as needed, valuators as needed, child experts as needed ♦♦♦
♦♦♦♦♦ Litigation Nonconsensual, extensive intervention; external locus of control Not adaptable, many rules, process-heavy Judge, court staff, lawyers as needed, valuators as needed, child experts as needed ♦♦♦♦♦ ♦♦♦♦♦

This led me to two observations, both of which may be trite:

1. Individuals' ability to determine the result of a dispute inversely correlates to the extent of the formal structure required by a dispute resolution process.

2. The amount of knowledge required to resolve a dispute roughly correlates to individuals' loss of autonomy in the dispute resolution process.

And that's my thought for the day.

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