Author: Heather Hui-Litwin
This is a blog post in response to JP Boyd’s article: “ A Few Thoughts for Family Law Litigants: Why It Pays to Let Bygones Be Bygones “ Slaw June 5, 2015
In his article “ A Few Thoughts for Family Law Litigants: Why It Pays to Let Bygones Be Bygones“, John-Paul Boyd wrote that family law litigants should avoid “mud-slinging” in court proceedings. John-Paul reminded us that the court prefers to deal with litigants who are solution driven. For example, litigants should “drop arguments and claims that are based on their own feelings of woundedness….Put more simply, litigants involved in family law disputes must grow up and let bygones be bygones.”
I agree totally with his suggestion. However, his phrase “let bygones be bygones” gave me pause. As wise as it sounds, this is one of the biggest hurdles that most litigants face. As a former litigant, many well-intentioned friends have given me the same advice. While I am fortunate that my case was not a family law matter (character assassination was not an issue), I had the same problem of letting bygones be bygones. I received well-meaning advice such as “Just settle the case. It’s not worth it. Litigation is a waste of time.” I myself have tried to persuade my own clients to settle without much success. Giving this advice to someone else is easy, but taking it yourself is a different story. Why is it so hard to let go?
Bringing it out of the hypothetical, let’s take a moment to reflect on recent conflict that has affected many people. The killing of George Floyd by a policeman has sparked numerous protests around the world. The public outcry is understandable. The repugnance of the policeman’s actions makes us want to condemn him and the police force in general for the systemic bullying of black people. No one is interested in hearing the policeman tell his side of the story. Racism is not a new problem, of course. We remember the Holocaust. Few people would say that it’s wise to mediate with the Nazis, to engage in “open minded” listening as to why they committed such acts of atrocities, and to reach a mutually agreeable solution. When such huge injustices are committed, we are in so much pain that we cannot bear to give the other side a chance to explain their actions in a peaceful dialogue. We are only interested in expressing our anger loudly. We feel we must fight for what’s right. We cannot move on, until justice is done. And even after it is done, we must never forget! We commemorate the world wars at Remembrance Day each year. Indeed, it almost feels instinctive to seek justice. And we often feel that justice is not served unless the wrongdoer is punished.
Perhaps it is the same reason why even for private disputes, there is a huge motivation to seek justice. Of course, most private disputes are nowhere near the severity of the events above. Nevertheless, when the injury is personal, it affects one deeply. It’s often impractical to tell such a person, to “just suck it up” and move on. A person who hears this may feel dismissed. Being told to “move on” tells a person that you are no longer “on their side”, someone who is willing to listen to them and support them. Telling them to settle or go through mediation is the same as telling them to “give in”, or “letting the opponent get away with their misconduct.” People in litigation often feel they have no choice but to fight. The need to stand by your principles is a strong motivator. Litigants are not seeking conflict resolution per se. It’s not a simple difference of opinion that they want the judge to resolve. They are seeking justice. They cannot bear to contemplate a society where bad behaviour has no adverse consequences. To lay people, there is little difference between bad behaviour that is morally reprehensible versus legal causes of action that can be addressed in a court of law. Therefore, when they are told not to include irrelevant facts, but those which they are passionate about, such as “facts” of bad character, they feel that they are not getting justice. They feel as though they are not “heard”.
So, how can we best help litigants to resolve their disputes, to let bygones be bygones?
One of the first things we can do is to educate litigants that the court deals only with legal issues, not character issues or hurt feelings. Articles such as the one by JP Boyd, and hopefully my work at Litigation Help, disseminate much needed information about how our justice system actually works.
Secondly, instead of telling people to let things go or move on, perhaps we can explain to them to seek justice in a different way. That is, instead of going to court, they can also use other dispute mechanisms, like mediation or negotiation (lawyer assisted), instead of, or, in conjunction with litigation.
Mediation sessions may not always be easy. .Indeed, it could be quite hurtful to hear another person being brutally honest as they complain about your behaviour, or to hear why they dislike you. However, actively listening to each other is better than going to a court, each trying to hang onto every detail from the hurtful past, because they need to “prove” facts to “win” their case.
JP wrote, “Differences is a necessary part of the human condition, without which we would be an awfully dull lot.” I would add that seeking justice also seems to a part of human nature. But justice is not just about hearing a single judge rule in one’s favour. We need an acknowledgement that we have suffered the wrong of another. Sometimes, we do need a source of authority, a court of law, to force some people to stop dangerous and harmful behaviour, in order to protect people from being injured and abused. Other times, as is often the case in family disputes, it makes more sense to work together to reach a mutually agreeable solution, instead of asking a court to force a solution on the parties. We cannot heal properly until we know in our hearts that the wrongdoer understands why their actions are so hurtful. A person who truly understands will likely make amends to “make things right”. The injured person will finally feel “heard”. When that happens, we can then truly let bygones can be bygones.
 Nathan H. Lents gives examples of how primates also have a sense of justice. See his book “Not So Different. Finding Human Nature in Animals”. Columbia University Press 2016.