Digital Family Justice

From Alternative Dispute Resolution to Online Dispute Resolution?

Mavis Maclean, Bregje Dijksterhuis, Mavis Maclean, Bregje Dijksterhuis

• Publisher: Hart Publishing
• Year: 2019
• Print ISBN: 9781509952274
• eBook ISBN: 9781509928538
• Edition: 1
• Topic: Law
• Subtopic: Family Law
• Index: Law

The editors' earlier book Delivering Family Justice in the 21st Century (2016) described a period of turbulence in family justice arising from financial austerity. Governments across the world have sought to reduce public spending on private quarrels by promoting mediation (ADR) and by beginning to look at digital justice (ODR) as alternatives to courts and lawyers. But this book describes how mediation has failed to take the place of courts and lawyers, even where public funding for legal help has been removed. Instead ODR has developed rapidly, led by the Dutch Rechtwijzer. The authors question the speed of this development, and stress the need for careful evaluation of how far these services can meet the needs of divorcing families. In this book, experts from Canada, Australia, Turkey, Spain, Germany, France, Poland, Scotland, and England and Wales explore how ADR has fallen behind, and how we have learned from the rise and fall of ODR in the Rechtwijzer about what digital justice can and cannot achieve. Managing procedure and process? Yes. Dispute resolution? Not yet. The authors end by raising broader questions about the role of a family justice system: is it dispute resolution? Or dispute prevention, management, and above all legal protection of the vulnerable? This title is included in Bloomsbury Professional's International Arbitration online service.

Part A

Digital Family Justice: Political and Professional Contexts for Change

(1) The Political Landscape

1

‘My Problem, My Solution’? Private Ordering and Self-help in British Columbia, Canada

RACHEL TRELOAR

I.INTRODUCTION

This chapter explores private ordering and self-help in the contemporary British Columbia (BC) family law and justice context, which involves both significant cutbacks to legal aid and other services and the expectation that parents will take responsibility for resolving their legal problems, in most cases without recourse to the courts. In such a context, parents with complex family law problems have few places to turn. Drawing on the socio-legal literature and from my doctoral research which explored how mothers and fathers who experienced a high-conflict divorce process make meaning of and navigate the experience, the chapter first provides a critical review of the literature on Alternative Dispute Resolution (ADR), discusses the privatisation of family law disputes, and summarises participants’ experiences of ADR. Secondly, the chapter discusses participants’ use of the Internet for self-help purposes. Thirdly, the chapter describes MyLawBC, an interactive digital platform introduced in mid-2016 with the aim of empowering people to act on their legal problems, and reflects on whether it would have helped these parents. Finally, the chapter considers the shift to digital self-help, especially given the shrinking role of the state in family justice.

The empirical study on which this chapter draws was undertaken from a critical and feminist perspective and employed a qualitative research design. The study sought to answer the following research questions: (1) How do individual mothers and fathers come to make meaning of and know themselves through the process of a high-conflict divorce? Subquestions included: How are individual interpretations influenced by social relations and discourses? How do collective meanings drawn from extra-legal discourses shape personal meanings and experiences of conflict in such situations and influence the take-up of legal norms? (2) How does high-conflict divorce become transformed into a positive experience? What personal and social relations/processes facilitate this? What challenges are encountered and how are they overcome? The research method involved in-depth face-to-face interviews with 25 parents¹ residing in British Columbia, who at one time experienced a high-conflict divorce and later identified surviving or navigating the experience as transformative. Participants were recruited through newspaper advertisements, community agencies, legal and health practitioners, ADR practitioners and chain referrals by previous participants.

Three key themes emerged from thematic analysis of participant interviews: the interrelationship of financial and child-related issues; the construction of expert knowledge and implications for justice and voice; and that positive personal change occurs over time when supported with personal, social, and material resources that address a parent’s particular needs and challenges. While each of these themes links to the focus of this workshop, this chapter focuses on what participants said about their use of out of court dispute resolution (ADR) and how they used the Internet for self-help purposes.

Canada has both federal and provincial/territorial laws that play a role post-separation. The federal Divorce Act² regulates divorce for married spouses and also applies in situations when child custody, access, child support, and spousal support are aspects of a divorce application. Outside of the context of a divorce application, provincial or territorial laws regulate child custody, access, child support and spousal support. The division of family property is regulated by provincial and territorial statutes, even when divorce is involved.

BC’s Family Law Act (FLA)³ came into full force in March 2013. This statute is intended to reflect social change, to put children first and to keep families safe (Bond, 2013). The Act emphasises out of court dispute resolution,⁴ which was promoted as cheaper, faster, and as having fewer emotional consequences for all involved (Bond, 2013). However, no new funding was provided to fund the services and programmes that families require as they go through the emotional and legal process of divorce. In line with a broader shift from welfare state provision toward a neoliberal approach to governance, family justice in BC is now largely privatised (Treloar, 2015; Treloar and Boyd, 2014).

In Canada, legal aid plans prioritise constitutionally guaranteed legal aid services, with the remaining funding going to civil legal aid. Beginning with significant cuts in 2002, family law legal aid has largely been eliminated in BC. Nevertheless, the provincial government, the legal aid service provider (Legal Services Society (LSS)), and other academic and professional groups are trying to broaden the scope of legal services within existing funding and new initiatives are being piloted. For example, between 2013 and 2015 a pilot project allowed designated paralegals to appear in family law proceedings in certain courts, with legal supervision. However, the project was discontinued⁵ before it could be determined whether paralegals could effectively perform specific procedural applications in court and whether the service provided a benefit. More recently, LSS launched two new pilot programmes. The first expands the scope of family duty counsel services⁶ at the Justice Access Centre (JAC) in Victoria. The second provides callers to the Family LawLINE⁷ up to six hours with the same lawyer. Furthermore, Family LawLINE now offers those who qualify additional unbundled services, such as the preparation of documents and settlements. Virtual initial needs determination (VIND), a telephone triage system operated by the provincial Family Justice Services, is also now part of the legal self-help landscape in BC.⁸

In 2016, MyLawBC,⁹ an interactive digital platform modelled on the Dutch Rechtwijzer, was introduced in BC. The inevitable shift to online service provision for family dispute resolution not only responds to the high cost of legal services but also reflects a broader trend for people to conduct business, seek information and communicate online. British Columbia is a vast province of 944,735 square kilometers (364,764 sq mi),¹⁰ almost four times the size of the UK. The majority of BC residents live near the southern border, where most services and transportation connections are located. Residents of northern, rural, and remote communities, many of whom are Aboriginal, have limited access to legal and other professional services. Internet access is not available in all communities.

An understanding of how privatisation is implicated in parents’ experiences of, and responses to, the family justice system is central to this chapter. While the state has largely withdrawn from support and intervention in family matters, the remaining funding has been redeployed both to ADR and to the development of online informational resources, neither of which are sufficient to assist parents with complex or high-conflict disputes. Yet, as my study demonstrates, parents involved in a high-conflict divorce process do engage in self-help, exercising their agency and parental responsibilities. They do so even though they are not always able to resolve their disputes out of court or fulfil contemporary social and legal norms for divorcing parents.

II.ADR: ISSUES AND CRITIQUES

Mediation is perhaps the best known, used and researched form of ADR. In BC, mediation emerged in the late 1970s, largely in response to the legal profession’s struggle to effectively deal with interpersonal conflicts and a search for alternatives (Boyle, 2013). Although mediation may vary in terms of how it is practised and funded, and the extent to which it is genuinely voluntary, generally it is a voluntary process in which a trained third party attempts to bring parties in conflict to a consensual agreement (ie, a ‘win-win’ solution). The third party is said to be neutral in the dispute, although this has been a matter of debate in the sense that mediation is settlement driven. Recent research conducted in the province of Ontario (Saini et al, 2016) found that mediation was associated with the outcome of more overall contact hours per month with the non-primary parent.¹¹ This result may be associated with the particular characteristics of those who opted for mediation (eg, domestic violence cases may have been screened out and/or parents opting for mediation in the first place may have been more inclined to cooperation) or even a mediator’s approach or values, making it an interesting finding that requires further study.

Collaborative Family Law (CFL) is a newer approach that involves both parties and their lawyers (and sometimes a multidisciplinary team that includes divorce coaches and financial and child specialists) meeting face to face to negotiate a settlement. The parties sign a participation agreement committing to the process and to negotiation in good faith. A defining feature of this comprehensive approach is a ‘disqualification agreement’ by which both lawyers must withdraw if the case does not settle. Although proponents of this approach claim that it is effective and results in high client satisfaction (Tesler and Thompson, 2006), there have been few empirical studies to date and only one Canadian study that includes the experiences of clients (Macfarlane, 2005). To my knowledge, no empirical studies specifically examine the use of CFL in high-conflict family disputes. Like mediation, it is often promoted as a better alternative to litigation, with benefits including improved communication and more creative and harmonious solutions. However, participants select into the process and are normally those with higher incomes, and many claims concerning outcomes lack empirical evidence (Zylstra, 2011).

Claims by mediators and policymakers that mediation results in better and faster outcomes at lower expense (see eg Salem, 2009) and is generally better than a litigated outcome remain a matter of debate. Nevertheless, ADR is heavily promoted on the basis of its ‘promise’ for reaching agreement (Kaganas, 2010). However, there are diverse views as to the effectiveness of ADR approaches, which are also based on a different philosophy from litigation (Genn et al, 2007). Litigation is also used far less often than ADR to resolve family law disputes. Attempting to evaluate studies on mediation outcomes has been described as comparing apples with oranges (Shaw, 2010) while comparing mediation to other forms of dispute resolution could be considered as ‘apples vs lemons’ (Parkinson, 2013: 213).

According to Semple (2012), three feminist critiques that are often directed at ADR are that it may disadvantage the party with lesser economic power (often mothers), that women are more likely to feel pressured to compromise because of social conditioning, and that it is usually inappropriate when there is a history of domestic violence. Gutman (2010) raises ethical issues in this regard, particularly concerning power imbalance between the parties, mediator use of power, pressures to settle, and cost. Therefore, although ADR may on the surface appear to fit with a relational approach because it is based on values of consensus and autonomy, Gutman (2010) points out that mediation may, in fact, contain coercive elements. There may be an imbalance of power between the parties as well as between the parties and the mediator. Semple (2012: 236) also highlights feminist concerns about the privacy of the process, pointing out that mediation can be seen as a form of privatisation in the sense that it is no longer open to public or legal oversight and therefore may lead to the wealthier party having an advantage and power imbalances becoming further entrenched. The confidential nature of such processes can make it very difficult to revisit the agreement later if one party discovers that the other did not fully disclose their assets or income. A final feminist concern summarised by Semple (2012: 236) is that of mediator neutrality and bias. He notes that mediators may hold gender stereotypes and that because of what he describes as the ‘almost clandestine nature of the settlement mission’, there is insufficient oversight and few safeguards. Nevertheless, drawing on the argument of Rhoades (2010) that mediators are now required to undertake training with respect to domestic violence whereas judges and lawyers are not, Semple (2012: 239) suggests that, paradoxically, the feminist critique may actually favour mandatory mediation in cases of domestic violence where the alternative is the ‘informal and unregulated settlement mission’. At present, those who have experienced domestic violence may be screened out¹² and are not required to participate in mediation. This interesting and provocative argument suggests that debates about the value and appropriateness of mediation are likely to carry on for some time yet.

Turning to CFL, a significant critique concerns its cost. First, this form of ADR is expensive, largely due to the number of professionals involved. It must be financed by the parties, typically on a 50-50 cost sharing basis, even if their incomes are quite disparate. Also, there may be considerable pressure to settle, and settlement is not always in a party’s interests. Further, if the parties do not settle then they will incur far greater expense than if they had gone to court in the first place. For some, it may deplete the resources they could otherwise have used for litigation. Non-settlement also lengthens the time involved to resolve the disputes because the parties must begin with new lawyers as a result of the disqualific...

Table of contents

• Cover
• Title Page
• Acknowledgements
• Contents
• List of Contributors
• Introduction
• PART A: DIGITAL FAMILY JUSTICE: POLITICAL AND PROFESSIONAL CONTEXTS FOR CHANGE
• PART B: THE DEVELOPMENT OF DIGITAL FAMILY JUSTICE
• PART C: THE WAY AHEAD
• Index
• Copyright Page