Divorcing couples may find faster, cheaper mediation during pandemic: experts


As the COVID-19 pandemic makes it more difficult for couples seeking divorce to appear in court, some family lawyers in Ontario say people may have more pressure to turn to alternative methods like mediation .

Court operations, including divorce and other family matters, were largely suspended in mid-March, with only emergency cases heard.

In-person appearances began to gradually resume earlier this month, and more cases are also being heard remotely, but experts say a backlog of cases will cause further delays for divorce proceedings ongoing and new divorce proceedings.

At the same time, some family law attorneys across the province say demand for such services has not declined during the pandemic – and some report it appears to have increased.

In Ottawa, a group of family lawyers launched the Virtual Family Law Project to help provide remote alternatives to the court system, such as mediation or videoconferencing arbitration, during the health crisis.

Gerald Yemensky, one of the lawyers behind the project, says he hopes more people will consider these avenues even after the courts return to full force.

“The judicial process is fundamentally necessary, especially in situations of higher conflict,” such as those involving domestic violence, Yemensky said.

“But for so many people, the justice system is overkill. And mediation, collaborative family law, arbitration on specific issues can be much more effective. But there has to be an element, and that element is that the parties want to resolve these issues. ”

Separation agreements made through mediation or a combination of mediation and arbitration are enforceable by the courts, and decisions made by an arbitrator are binding, Yemensky said.

“All of these things can be done… in a virtual process where it is appropriate,” he said.

In cases where it works, private resolution is likely to become more attractive given the backlog, said Diana Isaac, family lawyer and partner at Toronto firm Shulman & Partners.

“There is every reason for someone to say, ‘Can we do this faster, can we do this more cost effectively, with less emotional impact,” she said. “It’s something very attractive to customers.”

Going to court can be more expensive than mediation, and more stressful, given that a decision is imposed rather than reaching a mutually acceptable agreement, she said.

The pandemic has already created difficult conditions that contribute to stress and strain many relationships, said Isaac, whose cabinet has seen a 40% increase in separation inquiries during the crisis. Most of those people then continued with the process, she said.

Having both spouses at home 24 hours a day and possibly working there “acts as a catalyst for situations that were on the verge of separation, or there was resentment before COVID,” said she declared.

“But you also get these new ones,” I had no idea we’d never get along until we’re confined to this space, “so you get a mix,” she said. “But I don’t think these conditions make it easy for anyone.”

Russell Alexander, whose family law firm has offices in several cities, including Toronto and Oshawa, said the province’s efforts to modernize the justice system during the pandemic will help tackle the ‘backlog of business, but’ it will probably take 18 months. to two years before reverting to something close to normal. ”

Still, people will continue to be able to get divorces, said Alexander, whose upcoming divorce book includes a chapter on the impact of COVID-19 on the process.

“We’re still dealing with divorces and we’re still going through the process, we’re just doing it in a different way,” he said.

This report by The Canadian Press was first published on July 26, 2020.


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