In an ideal world, divorcing couples would avoid the bitter arena of the courtroom and skip to an alternative form of dispute resolution - such as mediation, negotiation or collaborative law - to settle their differences. Ontario Chief Justice Warren Winkler would like to force this ideal world into existence. He is proposing that divorcing couples be required to try an alternative dispute-solving mechanism before coming to court.
The coercion would be redundant. The justice system all but coerces people now into finding an alternative to the courts. The costs of a lawyer and legal filings are huge. The loser may be ordered to pay the winner's legal costs, too. A family breakup whose details were private is suddenly quite public, in most provinces, once a court action begins. Legal battles have a way of spiralling into endless acrimony. With all these built-in disincentives, it's a wonder that any couple insists on having a trial before a judge. In fact, only about 3 per cent of divorce cases go to trial in Canada, according to Statistics Canada.
Let's face it, some people just want to fight. A coerced mediation will not turn this pugnacious type into Mother (or Father) Teresa. For others, the court may be necessary, as pointed out by Judge Harvey Brownstone of the Ontario Court of Justice, in his 2009 book, Tug of War: "You may have to go to court if your ex-partner is refusing to communicate or is being unreasonable - for example, by evicting you from your home, keeping the children from you or emptying your bank account."
Alternative forms of dispute resolution are far from ideal. They can cost lots of money (and no little bitterness), too. Mediators usually charge $200 to $600 an hour. The mediator's qualification may be as slight as a three-day course. On top of that, each party is supposed to have a lawyer "shadowing" the process, at $300 to $600 an hour. As an alternative, it's a matter of personal choice. A non-alternative alternative is coercion gone too far.