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Do you have clients who are locked in a bitter court battle over the arrangements for their children? Are you looking for a more constructive way forward, within the court system, without having to put your client through the stress of a fully contested trial? If so, help could be at hand.
There is currently a pilot being run by the Ministry of Justice to introduce settlement conferences into court cases where issues in relation to children are being determined, an approach which is well established in Canada and has been used there for many years. If the pilot is successful legislation is likely to be passed to introduce the option of a settlement conference into all court proceedings determining issues involving children.
The settlement conference allows the parties to the proceedings to speak informally to a judge to try and resolve issues without the need for a full trial. The judge tries to clarify information, facilitate discussion, analyse issues and promote understanding between the parties with a view to helping identify solutions.
As you will no doubt know, taking matters to trial can cause entrenched positions and fraught emotions. Our court system is adversarial; it is a very rational, process-oriented, structured approach. The difficulty is the issues being dealt with can be substantially emotional with there being a need to tackle the underlying conflict to really resolve matters effectively for our clients and their children.
The settlement conference has been introduced as a move towards a more problem-solving approach within the family courts. Settlement conferences try to help parties avoid an adversarial court room.
A protocol for basic principles has been drafted to provide consistency and fairness in procedure and expectations. The process is constantly being refined to reflect feedback and the experience of those involved but here is a summary:
It is hoped the opportunity of a more constructive, less confrontational approach to dealing with cases that have ended up in court will help parents to resolve matters in a way that is more likely to support the best interests of their children.
There are of course other non-court based dispute resolution options available including mediation, the collaborative process, and arbitration which should always be considered as a means of helping parents work out the arrangements for their children.
If you have any queries or want to find out more about the pilot please contact your local family justice board or local designated family judge.
This article was first published on the Law Society’s Family Section on 16 February 2017