The other day the judge in Family Court said "We can't consider "fairness" when deciding cases." I was shocked but then I realized that she is right. Family Court is about rules and process. Like cases are to be treated alike according to the law. The law is a set of principles that the judge uses to prescribe the rights and responsibilities of the parties. Judges have a lot of discretion when applying the law to the facts so we speak in terms of the likely "range of outcome". Fairness in family court means applying the rules and principles impartially to each party. The resolution is not necessarily seen as "fair" to both parties. In fact, neither party may feel it is "fair".
One of my clients, referring to Family Court, said "It's not a justice system, it's 'just a system'." How true. Family court is a system intended to resolve disputes. That's all.
This is not in any way to impugn our Family Court judges. We have brilliant judges who care about the parties before them. It's just that the court system is an adversarial system. It isn't intended to meet the core concerns of each party.
Of course, in a sense it is "fair" to impartially apply the same rules and principles to all parties to resolve their disputes. That's what courts do.
What most people want is a resolution that takes into consideration their core concerns: their underlying needs, desires, concerns and fears. Courts are not allowed to take into consideration the core concerns or interests of the parties. Courts take into consideration only those facts that are logically related to the applicable principles of the law. Judges' discretion is limited by the law.
Collaborative Practice is a process that involves interest-based negotiations. The professionals help the parties discover their core concerns. We then help the parties brainstorm solutions that take into consideration both party's core concerns. It's hard work but in the end the parties have a "win-win" resolution: a resolution they both feel is "fair". At Galbraith Family Law, all of our lawyers are trained to help clients using Collaborative Practice. We also go to Family Court but if we can help you reach a win-win resolution using Collaborative Practice, we do it.