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.