Divorce is already emotionally and financially draining and, for many couples, the prospect of navigating the Ontario family court system adds an additional layer of complexity, cost and frustration.
However, more savvy spouses understand the importance of evaluating their options. In this article, I will explore how understanding your BATNA can help you make informed decisions, address the major problems with the Ontario family court system, and justify the need to choose mediation or mediation/arbitration as an alternative to court.
What is BATNA?
BATNA, as defined by negotiation experts Roger Fisher, William Ury, and Bruce Patton, represents a spouse’s best alternative to a negotiated agreement (or mediated agreement or arbitrated agreement). For divorcing spouses, understanding your BATNA is crucial when considering your options.
The Ontario family court system has been plagued by a multitude of issues, and so it is imperative for divorcing spouses to be aware of the top 3 challenges.
Challenge #1 = Delay:
One of the most significant problems for divorcing spouses is the extensive delay in court proceedings. In most cases, it takes one year for a temporary motion to be heard by a judge, and can take up to 5 years to reach trial. Such delays can negatively impact children, spouses and finances, leading to unfavourable settlements, or even abandoning legitimate claims.
Challenge #2 = Backlog:
The backlog in the Ontario family court system is attributed to several factors, including an antiquated system, an increase in self-represented litigants, insufficient judges, last-minute adjournments, and the diversion of resources to criminal matters due to the constitutional right to a speedy trial for persons accused of a crime.
Challenge #3 = Access and Affordability:
Canada’s ranking of 68th out of 140 countries concerning “access and affordability of the civil justice system” is alarming. Timely access to justice is essential for a democratic society, and the current situation undermines public confidence in the judicial process.
The role of BATNA:
In light of these challenges, divorcing spouses should seriously consider mediation or mediation/arbitration to reach a settlement, or an arbitrated conclusion to their case. Before diving into the court system, divorcing spouses must assess their BATNA carefully.
Mediation typically offers a quicker and more cost-effective resolution compared to protracted court battles. By choosing mediation, spouses can minimize financial losses, reduce emotional strain, and maintain greater control over the process. A strong mediator will encourage open and productive communication between the spouses, identify possible settlements, and trigger mutually agreeable solutions. This approach contrasts with the adversarial nature of litigation. For those cases that require a neutral third party to adjudicate a conclusion, opting for mediation/arbitration instead of litigation will save time, money and disappointment. A qualified mediator/arbitrator is a family law expert who can conclude a case faster than a non-specialist or a judge.
Divorcing spouses in Ontario must take a smarter approach than turning to the family court system. Understanding their BATNA and recognizing the flaws in the court system can empower them to make informed decisions.
By choosing mediation or mediation/arbitration, couples will expedite the resolution of their divorce and minimize its emotional and financial toll.
Sources: “Taking Your BATNA to the Next Level” by Guhan Subramanian and “Getting to Yes: Negotiating Agreement Without Giving In” by Roger Fisher, William Ury and Bruce Patton.
Editorial note: This article was first published on LinkedIn in January 2025 and is republished here for reference.
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