Most readers of my blog will know that I believe that family law cases should settle, that we should make use of out of court processes in pursuit of settlement, and that in fact most of the time settlement happens outside of court. So it might come as a surprise to you to read a blog from me about why court is still sometimes necessary. But I wanted to write this blog to address what I sometimes see as a client’s reluctance to proceed to court, to their detriment.
To be clear, I am not advocating that court ever be a “first choice” because all the general arguments against court remain true: it is unnecessarily adversarial, it is expensive, it is slow, it damages relationships. Rather, I see court as a necessary alternative to all the other dispute mechanisms we have available, an alternative that should only be chosen after careful consideration. I say this because some cases just won’t settle or will lead to unfair results without court.
In my experience, one of the main situations in which court may be necessary is if one party is not able to enter into discussions in good faith. This lack of good faith can be demonstrated by a failure to provide financial disclosure, a failure to acknowledge a need for settlement discussions, or a complete lack of respect for the other party. In my opinion, in these types of situations, court may be an appropriate choice. This is because it is simply impossible to “settle” if there is a complete lack of good faith on the part of one person.
Lest any of you think that I am advocating for court, I want to be clear: disagreement is not a lack of good faith. It is natural for people to disagree and have different opinions on many things. This is particularly the case when people are separating and trust is not necessarily high. However, when this occurs, it does not mean that court is necessary, but rather an indication that creative thinking may be needed.
As a lawyer, my first position in family law cases is always to try to settle. However, it is important to acknowledge that at times, court and all of its problems, may be a necessary ingredient to the resolution of a matter.
Of course, the above does not apply to child protection cases. In fact, the opposite is true – child protection cases are or should always be in court, but for very different reasons. Stay tuned for further posts on that issue!