provided by Lisa Dewar / Milne Selkirk
Problem-solving is different from going to war. Resolving conflict cooperatively allows each party to feel they have made a “good trade”.
Legal wars are fought in the adversarial litigation process, where parties become polarized and dedicated to their own positions, believing that a judge will agree with them and punish (or at least deflate) the other party. Unfortunately, the family courts are crowded so there are many delays and different judges for different applications along the way, judges are human and decide cases on the basis of credibility and the evidence before them, and sometimes the “fair” decision rendered is unsatisfactory to both parties who each want to “win”, not “lose”. Sometimes the battle is won (success on an interim application) but the war is lost (by estrangement from the children, for example). Trade-offs may occur during settlement efforts or on the eve of trial, but there they tend to be fear-driven and may not be reciprocal.
In the collaborative process, it is not about winning and losing – just two people who are trying to disentangle their emotional attachments and financial obligations, while continuing to raise their children and redefine their family structures. What is important to one may not be so to the other. Material possessions may mean a lot to one party, while family bonds and attachments may mean more to the other party. In the course of searching for the best solutions, sometimes one of the parties may want to relinquish one right in favour of another. In that case, counsel must be vigilant to ensure that the trade-off is fair – not one party just throwing away a right on an emotional whim. Certainly, solving problems can be satisfying, and each party has a right to give away benefits, but unfair trade-offs can also be the source of future resentments. My practice is to ensure that there is a corresponding benefit to the party who appears to be giving up a benefit.
Lisa M. Dewar
Family Law and Mediation
MILNE SELKIRK, Lawyers
Bldg #5, 21183 – 88th Avenue
Langley, BC V1M 2G5