Keeping family law disputes out of court yields better results at less cost, study finds

Most lawyers and clients prefer to resolve family law disputes through collaboration rather than in court, and collaboration is less expensive than litigation, a new study shows.

The study, by the Canadian Research Institute for Law and the Family (CRILF) based at the University of Calgary and the Canadian Forum on Civil Justice (CFCJ) based at York University, looks at lawyers’ choices and preferences and the cost implications of four dispute resolution processes commonly used in family law disputes: collaborative settlement processes, mediation, arbitration and litigation.

Improving access to justice in Canada requires that we improve the availability and accessibility of a range of processes that facilitate dispute resolution, both in court and out of court. Despite wide-scale acknowledgement of the need for our justice system to evolve in ways that emphasize diverse approaches to problem resolution, there remains a lack of research on the effectiveness, costs, benefits and limitations of different dispute resolution processes.

The final report from the study – An Evaluation of the Cost of Family Law Disputes: Measuring the Cost Implication of Various Dispute Resolution Methods – reveals a number of important findings. In terms of benefits and preferences, based on a survey of 166 family lawyers in Ontario, Alberta, Nova Scotia and British Columbia, the study found that:

• Collaborative Settlement Processes. 90% of lawyers prefer to use collaborative processes whenever possible, and more than 94% of lawyers say their clients are satisfied with the results they achieve through collaborative processes.
• Mediation. 78% of lawyers agree that mediation is usually cost-effective, and 69% agree that mediation is usually fast and efficient.
• Arbitration. 58% of lawyers report that their clients are satisfied with the results that they achieve through arbitration (this compares with a 94% perceived client satisfaction rate for collaborative processes and 82% for mediation), while 90% of lawyers agree that they can deal with complex issues better through arbitration than other processes.
• Courts. Views regarding the public court system in the context of family law are less positive; although approximately 64% of lawyers agree that litigation is suited to high-conflict family law disputes, most – over 83% of lawyers – disagree that litigation is either fast or efficient.

In addition to benefits and preferences, this study provides an important new glimpse into the relative costs associated with resolving family law disputes using different processes. For example, the average legal fee to resolve low-conflict disputes through collaborative settlement processes was $6,269, and the average fee to resolve high-conflict disputes was $25,110. By comparison, the average fee to resolve low-conflict disputes through litigation was $12,400, and the average fee to resolve high-conflict was $54,400.

The lawyers responding to CRILF’s survey clearly view collaborative settlement processes and mediation as producing faster, less-expensive, longer-lasting resolutions results that are more likely to be in the interests of their clients and their clients’ children, than either arbitration or litigation. They also prefer to resolve disputes through collaborative processes and mediation, than through litigation. They prefer to arbitrate family law disputes rather than litigate, and view arbitration as faster and less expensive than litigation.

These findings beg the question of why litigation continues to be so widely used by separating parents to address family law disputes. The data offer some suggestions and partial answers. Lawyers said that litigation is more useful for high-conflict disputes than other dispute resolution processes, that litigation is useful when there is a risk to an adult, a child or property and that litigation is more useful than other processes for dealing with the evidence of mental health experts, financial experts and valuators.

Given the sample size and that clients were not contacted directly through this study, there is clearly more work to be done to get a broader picture of lawyers’ and clients’ views, preferences, experiences and costs. However, these and other findings from this new and innovative study provide important insight and evidence for lawyers, policy makers and researchers interested in access to justice and law reform in family law disputes in Canada.

The final report from this study, which also includes a social return on investment (SROI) analysis and recommendations for further research, is available from the CRILF website, at <http://www.crilf.ca/publications.htm>, and the CFCJ website, at <http://www.cfcj-fcjc.org/sites/default/files//docs/Cost-Implication-of-Family-Law-Disputes.pdf>.

An Evaluation of the Costs of Family Law Disputes: Measuring the Cost Implication of Various Dispute Resolution Methods forms part of the CFCJ’s 7-year SSHRC funded Cost of Justice project, which looks at the costs of providing, and of not providing an effective and accessible justice system (see further online, CFCJ <http://www.cfcj-fcjc.org/cost-of-justice>).

Contact for the Canadian Forum on Civil Justice – Forum canadien sur la justice civile:
Professor Trevor C.W. Farrow
TFarrow@osgoode.yorku.ca

Contact for the Canadian Research Institute for Law and the Family:
John-Paul E. Boyd
jpboyd@ucalgary.ca

Media Contact:
Janice Walls, Media Relations, York University, 416 736 2100 ext. 55543, wallsj@yorku.ca