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."