Over 30 years ago, I handled my first hotly contentious matrimonial file. After listening to my client and spending hours typing an affidavit outlining all the horrific things her estranged husband had done to her and the children, I couldn’t help but empathize with her plight. After serving the other side with this material, we received an epistle from the estranged husband that alleged equally outlandish and egregious behaviour by my client. As any rational individual would, I concluded that one, if not both, were pathological liars since how could both have lived in the same household and have representations of reality that were so divergent. The litigious environment encouraged a further volley of attacks and counter attacks that ensued to the point where one wondered if either should be entrusted in caring for their children. Yet a judge had to decide what was best for those children. The real tragedy is that those parents, consciously would convey to the children their total enmity for the person that they had chosen to be the parent of their children.
Times have not changed much if you were to walk into a family law courtroom today. You still see people who were once madly in love with one another, recounting history through the lens of hurt and anger portraying their spouse as an abhorrent individual.
Societies used to find all kinds of behaviours acceptable that we would no longer tolerate; smoking in cars with the children a captive audience, corporal punishment in the home and school….Yet, contested family law cases still result in mudslinging between parents and hiring the gunslinger advocate to attempt to annihilate the other parent.
The wisdom that comes with witnessing the train wrecks of thousands of marital breakdowns, as well as seeing the damage to future generations, led me long ago to conclude that in the vast majority of cases where a marriage breaks down there is rarely a hero and a villain. Usually, there are two people who had the best of intentions when they started out, but along the way things broke down and they are separating. The parties I referred to were not “bad people” but the adversarial process exacerbated an already highly charged emotional situation which led to allegations and counter allegations that made them seem like terrible people.
The collaborative process however, by contrast, provides an opportunity for separating parties to resolve their differences, with the assistance of experience professionals, in a forum that is conducive to attacking the problems and not the other person. The net result is that the solution is usually much faster and far less damaging to the parties and the children.
While I was always settlement oriented, I was led to the collaborative process about ten years ago because I found that in most cases, it provides a forum that is conducive to relieving the emotion and accentuating the focus of productive discussions that lead to a solution that is int he best interests of the family as a whole.
Couples going through a separation are usually in a highly emotionally vulnerable state and can be more easily influenced than at other times of their lives. Not all cases can or should be channeled into the collaborative stream but for the vast majority it is a far less damaging and more productive environment than the “mudslinging environment” of the adversarial world.
Richard T. Bennett LL.B LL.M