Last year, the Canadian Research Institute for Law and the Family (CRILF) and the Canadian Forum on Civil Justice (CFCJ) sent out a survey to family lawyers in Canada to get a sense of legal professionals’ preferences around dispute resolution methods and the costs associated with these various avenues. 166 lawyers completed the online survey, the results of which are presented in a newly released report: An Evaluation of the Cost of Family Law Disputes: Measuring the Cost Implication of Various Dispute Resolution Methods.
This research is a sub-project of the CFCJ’s larger, multi-year Cost of Justice project, which examines the social and economic costs of Canada’s justice system. John-Paul Boyd, executive director of the CRILF and one of the report’s authors, explains, “It’s really only in the last five or six years that efforts have been undertaken to collect actual empirical information about the courts and other dispute resolution processes,” adding that, “part of the whole access to justice inquiry has to involve the accessibility of different dispute resolution processes and their relative costs.”
While this study involves a relatively modest number of respondents, the results provide very useful information regarding the relative costs and benefits of various family law dispute resolution processes.
Collaborative Settlement Processes
Of the 166 lawyers who completed the survey, approximately 63% said they used collaborative settlement processes in their practice. A collaborative settlement process is a method of dispute resolution in which other professionals, for example, divorce coaches, child specialists, financial specialists, psychologists, parenting coordinators, etc., are brought into the process as a way to help address or resolve specific issues. Lawyers who acknowledged that they use collaborative processes were asked a series of follow-up questions to gauge their views on the efficacy, limitations, cost-effectiveness, and usefulness of collaborative processes, in some instances, as related to specific types of family law problems. A similar process was followed for respondents who indicated that they use mediation, arbitration and/ or litigation.
In terms of costs, the answers obtained from those surveyed provide a useful view of the range and average total costs of the four legal processes. For example, the average bill for a lawyer’s professional services during a collaborative process can range from $6,269 (for low-conflict disputes) to $25,110 (for high-conflict disputes). By comparison, for disputes that are resolved using litigation, the average cost ranged from $12,395 (for low-conflict disputes) to $54,390 (for high-conflict disputes). The highest cost indicated in the survey was $625,000, to resolve a high-conflict dispute primarily through litigation.
In addition to this glimpse into the costs associated with these four dispute resolution processes, the CRILF-CFCJ report also highlights several interesting findings about lawyers’ perceptions of the usefulness and suitability of collaboration, arbitration, mediation and litigation for complex issues, cases involving children, and for cases that are high- or low- conflict. For instance, over 94% of the family lawyers surveyed agree that their clients are satisfied with the results they achieve through collaborative processes, a figure that is also representative of lawyers’ preference to choose the collaborative route over litigation. It should be noted, however, that only 36.1% deem collaborative processes to be appropriate for high-conflict family law disputes.
Mediation and Arbitration
Based on the data collected, conflicts that are dealt with through mediation and arbitration have markedly shorter average timelines compared to litigation. Mediation, for example, is estimated to take an average of 4.8 months to resolve a low-conflict dispute (and an average of 13.7 months for a high-conflict dispute), while lawyers estimated that a low-conflict family law case dealt with through litigation would require an average 10.8 months to be completed (and an average 27.7 months for a high-conflict dispute). That amounts to almost double the time.
These, and other data presented in the report are worthwhile considerations in discussions around improving efficiency in the family law system. As the report’s authors remark, policy decisions need to be made from this place of awareness.
If we are going to call for more support for these and other more efficient avenues, it is essential to be clear about the kinds of matters that are best left to the courts. As referenced before, situations that fall under the umbrella of high-conflict disputes are generally thought to be better suited to more traditional litigation, as are those urgent problems involving violence, risk of harm, substance abuse and mental disorders. These are cases that lawyers largely agree are better resolved through adjudication, rather than collaboration.
There is still work to be done to sort out which process best suits which conflict. While it is important to acknowledge that the responses reported here give us only a relatively limited window into lawyers’ perceptions of dispute resolution processes (and not the clients’), they nonetheless offer a helpful basis for discussions on cost and the suitability of common family law dispute resolution processes – all based on empirical findings.
There is a real opportunity to capitalize on methods of dispute resolution that are perceived to offer more efficient and cost-effective pathways for families that are experiencing turmoil. By having lawyers present and encourage their clients to look at a range of options (while explaining the various benefits and drawbacks of each), we can move towards improving our family justice system and empowering individuals to choose what is best for them while more efficiently distributing funding and resources to non-court processes.