Examining a lawyer's duty to advocate for alternative dispute resolution
There are many pitfalls to litigation and the court process. Court is expensive, stressful, and slow, and the result is normally a “winner-take-all” situation. This is precisely why in recent amendments to family law legislation, there has been a push toward dispute resolution. For example, in the Divorce Act and Family Law Act, lawyers are obligated to push for dispute resolution processes unless it would be inappropriate to do so (e.g. situations with family violence, non-disclosure of financials, etc.). The Divorce Act and Family Law Act state:
Divorce Act, (R.S.C., 1985, c. 3 (2nd Supp.))
Duty to discuss and inform
7.7 (2) It is also the duty of every legal adviser who undertakes to act on a person’s behalf in any proceeding under this Act
(a) to encourage the person to attempt to resolve the matters that may be the subject of an order under this Act through a family dispute resolution process, unless the circumstances of the case are of such a nature that it would clearly not be appropriate to do so;
(b) to inform the person of the family justice services known to the legal adviser that might assist the person
(i) in resolving the matters that may be the subject of an order under this Act, and
(ii) in complying with any order or decision made under this Act; and
(c) to inform the person of the parties’ duties under this Act.
(3) Every document that formally commences a proceeding under this Act, or that responds to such a document, that is filed with a court by a legal adviser shall contain a statement by the legal adviser certifying that they have complied with this section.
Family Law Act, R.S.O. 1990, c. F.3