27 February 2021
21 February 2021
Collaborative divorce and online dispute resolution: How COVID-19 is changing the way we settle disputes
COVID-19 has laid bare the many vulnerabilities of our justice system. In the first few months of the pandemic, courts were effectively shut down, except for the most urgent matters. For family law and divorce cases, this meant that many hearings and trials were adjourned and claimants had no access to the courts to get an order or judgment. There is still a massive backlog of family law cases in our court system today which will likely last for some time.
However, rising out of this crisis is a new level of appreciation for alternative dispute resolution processes, like Collaborative divorce, which can be conducted online and remotely. On February 17, 2021, the Canadian Bar Association released a report titled No Turning Back: CBA Task Force Report on Justice Issues Arising From Covid-19. This report includes the following recommendations regarding dispute resolution:
- Justice system partners (including groups representing justice seeking individuals, court and tribunal administrators, bar representatives etc.) should establish a working group dedicated to exploring how to effectively triage matters that are more amenable to early resolution and matters that better lend themselves to remote proceedings.
- The working group should explore which areas of law are potentially suited for ODR-type platforms and how to integrate all these matters into the public system.
In my practice, I have seen that the majority of family law cases do not need court intervention. Most of them in fact are resolved outside of court, but for some reason there are those who are still resistant to alternative dispute resolution processes like Collaborative law and mediation. However, changes to the justice system brought on by COVID-19 may be forcing them to accept a new reality.
In 2020, when COVID-19 had closed the doors to the court system, many people had no other choice but to resolve their family law disputes in mediation or through a Collaborative process because these processes can be utilized fully through online platforms. As a result, some people (including some family lawyers) who would never have considered mediation or Collaborative divorce gave it a try. Moreover, I have witnessed judges in court being far more assertive with people and very firmly telling them to attempt to resolve their matters outside of court because court resources are so limited now.
My experience with ODR processes like Collaborative divorce and mediation over the last year has convinced me that for many people this process is more client centered and convenient. Rather than needing to travel to a lawyer’s office, clients who may have long commutes can attend meetings at home. For people living in small communities with limited legal resources, ODR opens up the possibility of working with Collaborative lawyers and mediators in other cities. Individuals with mobility limitations are also benefiting from ODR as it means they can access dispute resolution services wherever is convenient for them.
The justice system is slow to adapt to change, but COVID-19 has forced it adapt to the times by advancing technologically and further embracing alternative dispute resolution processes. It has also highlighted the benefits of ODR and how this can be used in mediation and Collaborative law to reduce the pressure on the courts, while also providing a client centered approach to conflict resolution. These changes should be enshrined in court rules and legislation so that they last well beyond the pandemic. As stated in No Turning Back: CBA Task Force Report on Justice Issues Arising From COVID-19: "First, there is no turning back. The pandemic propelled the justice system into a long-awaited modernization. We must continue forward and build on the measures, procedures and innovations implemented in response to the pandemic and focus on the needs of the users of the justice system."
08 February 2021
Challenging conversations can actually bring your family closer, as difficult conversations can be opportunities for growth. Talking to your children about difficult topics can demonstrate to them that you have their best interests at heart, that you are courageous enough to face problems and that they can rely on you for information and guidance. There are many difficult conversations we need to have with our children but informing the children you are getting divorced may be one of the most difficult of all.
Why is the divorce talk such a difficult conversation? First of all, we need to understand that as parents we are programmed to protect our children. If our child is being bullied we know what our role is. Sometimes we must temper out reactions so we can truly assist our children – but there is no doubt that we have a visceral response when our children are in danger of being hurt physically and emotionally. I can certainly recall times when my own “mother bear” reared its head and I wanted to retaliate against the bully that was attempting to harm my child. Of course, I realized that it would be wildly inappropriate for a middle age Child and Family Therapist to be taking down some 8-year-old that was teasing my child on the playground – but I won’t pretend that the thought did not cross my mind!
This desire to protect also applies to conversations about sex and drugs. There is some outside force that might harm our child – and we want to prepare and protect our child against something dangerous. Our protective role is clear. So, the truly complicating factor that makes talking to your children about divorce so difficult is that the parents are the source of the pain. This causes great dissonance. How do we help protect our child against ourselves – when we are the ones causing great sadness and distress in our children? This may be the reason so many parents avoid this conversation, or rush through it by trying to tell their children that everything will be fine.
The bad news is that talking to your kids about divorce is one of the most difficult conversations that parents can have with their children. Although I understand and empathize with the guilt parents may feel in this situation, this guilt and discomfort should not be used as an excuse to avoid doing what must be done. I caution parents that avoiding this conversation, or candy coating it in some way, may only cause additional distress and pain in the long run for the children.
The good news is that if the parents do this conversation well, they can help their children adjust and heal much quicker. Change is inevitable in life, and how we approach the divorce talk can teach children that grace and dignity can be part of grieving and healing. There is no perfect way of having this talk – but it is best when it is done in an authentic and thoughtful manner.
Some tips for talking to your children about divorce:
- It is always best if both parents can tell the children together. You brought the children into the world together, and you owe it to your children to make their needs more important than your marital difficulties. It is important to come together and hold the space for your children during this conversation. The parents need to be the leaders – and leaders show their true strength during the most difficult of times. This will demonstrate true courage in the face of adversity and set the template for your children to develop grace under fire.
- Give them an explanation. Do not give your children too many details regarding your marital difficulties but do provide an explanation that makes sense to them. Let them know your love has changed, and sometimes adult love changes and no longer fits together like it once did. Let them know as a couple you have done many things well – like creating them – but unfortunately you did not work out your problems well together. Honour each other in front of the children and let them know you are sad as well – but do not let your sadness or feelings dominate the discussion.
- Acknowledge that this is a sad day for the family. Tell your children that whatever they are feeling is ok. It is ok to be sad, mad, disappointed and fearful of the changes. Don’t try to “sell them a line” that everything is great and they will be happy again soon. Do not be afraid of their sadness – acknowledge it – and let them know there are some things that are worth feeling sad about.
- Be honest about what will be changing and what will not be changing. Let them know that their schedules and living arrangements will be changing. Tell the children that some things do not change. Let them know that although adult love can change– the love between parents and children is a unique kind of love and it never changes.
- Let them know that a plan is in place. It is best if you have this worked out beforehand. Children need to know their schedule. Reassure them that you will still work together as their parents, and rather than just one home they now have two safe harbours in the world. Let them know there may be bumps ahead – but you will do your best to work through the bumps and that they are your top priority.
Leading your children through changes in your family can build a deeper intimacy with your children. It is a real-life experience in which they can see you continue to do your job as a parent even under pressure. Our challenges and human vulnerability often connect us – and this can be the gift that emerges as your family changes and evolves.