Lawyers prefer to use alternative dispute resolution processes in family law, which cost the client less, take less time and make for longer-lasting co-operation between the parties after the fact, according to a recent study.
The study asked family lawyers to evaluate their experience using collaborative settlement processes, mediation, arbitration and litigation. More than 90 per cent said they preferred to resolve family law disputes through collaborative processes whenever possible and 94 per cent said their clients were satisfied with the outcomes when doing so.
The study was done in collaboration with the Canadian Research Institute for Law and the Family at the University of Calgary and York University’s Canadian Forum on Civil Justice.
The findings of the study are not surprising, says Heather Hansen, a family law certified specialist and partner at Martha McCarthy & Company LLP in Toronto who frequently uses arbitration and mediation.
“It’s not a controversial idea or concept that people resolving their family law disputes do better generally by reaching an agreement,” she says.“I am a huge believer in mediation, a huge believer in arbitration. I practise regularly in those worlds."
But Hansen says the message that the study sends — that alternative dispute settlements are a better route than litigation — rests on certain assumptions that are not valid in many family law cases; for example, that a collaborative settlement is always preferable to a court battle because it saves time, money and stress.
One issue is the imbalance of power often inherent to family law cases. In some cases, one person holds all the assets, the nature of which the partner is unaware. This knowledge imbalance can produce a settlement, but it does not mean that it is a better outcome, she says.
“The concept of better outcomes or better results actually just depends on the nature of the case,” she says. “Who’s it better for? Is it better for the asset owner who cut a sweet deal? Or is it better for the recipient spouse [for whom] this is the most significant transaction in his or her life and she or he needs to maximize their financial outcome? ‘What does better mean?’ is kind of an open question for me when you look critically at that.”
Hansen says there is an important reason family law does not have mandatory mediation like in civil litigation. Given the complex circumstances and diametrically opposed interests in some family disputes, there needs to be an adversarial process, the structure of the rules, disclosure and other benefits of the court process, to reach the best outcome, she says.
“It’s not a failure of the parties or the family if they find themselves in litigation. It’s not that they’re making a bad choice. It might be a necessary choice under the difficult circumstance,” she says.
Hansen says that the rise of alternative dispute resolution strategies is “one good side effect” to the ongoing problem of lacking judicial resources.
The study was part of a seven-year “cost-of-justice” study being done by the CFCJ, says Trevor Farrow, chairman of the CFCJ.
Farrow says that, unlike in health care, Canadians do not have a good sense of what the delivery of legal services costs the system.
“I think this study is really important for several reasons. First, it is one of a very small handful of studies in which we are starting to look at the actual cost of family and civil justice,” he says.
“Hopefully, it will give us information to make choices on cost. And, hopefully, it will give us information to make choices on why we want to choose one process over another.”
The study shows that in cases that are classified as “high conflict,” lawyers did not prefer alternative dispute settlements but expressed that litigation was more effective.
“Typically, where [litigation] is found to be more useful is in high conflict, often involving the rights of marginalized or vulnerable people and in particular children,” he says.
Parties to a family law dispute need to pick the process that will be right for them, says Jonathan Richardson, a partner at Augustine Bater Binks LLP.
“It doesn’t surprise me that people are more satisfied with results that they have negotiated and achieved for themselves because it is not having a decision imposed on them,” he says.
“Litigation can be very much a zero sum game. There is one winner, there is one loser and then there is resentment involved,” he says. “When it’s been a high-conflict scenario even before the breakdown of the marriage, it can result in high-conflict litigation, which needs a decision to be made. Those situations don’t always lend themselves to alternative dispute resolution.”