A recent study finding that most paths through the family justice process lead to resolution by negotiation lays the groundwork for a discussion on why many cases even enter the court system in the first place, says Toronto family lawyer Nathalie Boutet.
The research project is discussed by its authors, Rachel Birnbaum and Nicholas Bala, in a recent edition of Lawyers Weekly. The article examines the study’s preliminary findings, chronicling the experiences of Ontario family justice professionals with the realities of dispute resolution.
The research, conducted through a web-based survey sent to members of the Ontario chapter of the Association of Family and Conciliation Courts, reveals most family law cases are resolved by negotiation, says Lawyers Weekly.
“Respondents report that a majority of their disputed child custody cases are settled by negotiation between lawyers, followed by resolution by an interim court order with no trial, followed by mediated settlement, and then by trial,” says the article.
“For most professionals, less than 10 per cent of their cases result in trials. More than 25 per cent of respondents indicate that over half of their family cases are settled by lawyer-to-lawyer negotiation; another 10 per cent reported that parents themselves negotiated settlements to resolve more than half of the cases.”
Boutet, who focuses on out-of-court practices including collaborative law and mediation, says she’s encouraged to see that the study, like similar previous research, points to negotiation as the preferred method of resolution for parties.
“It’s good to see the information continuing in that direction,” Boutet tells AdvocateDaily.com.
While the research is positive, Boutet says many cases that resolve by negotiation still start with a court action, which means clients still deal with the stress and expense of being in the court system.
“Within the court system at some point, there will be a resolution before it gets to trial,” she says. “So why is it that they have to go through the court system in the first place?”
Boutet says, “It’s very important to have the court system available for people who can’t resolve their disputes out of court, but I think certain lawyers believe it’s better to throw clients into the litigation arena and hope for the best rather than throwing them into the collaborative law arena and say that’s the best.”
Clients who may prefer out-of-court resolution techniques may not be offered these alternatives and they may not know to ask for them, says Boutet.
“When they present themselves to lawyers, they’re very, very depleted. They’ve often had years of feuding in the family, and they’ve agonized over whether to break up the family or not. Very, very often, they have financial difficulties as well,” she says.
“They’re afraid of what’s going to happen to them in the future, they’re exhausted, they’re scared of being taken advantage of, and a lot of times they don’t have negotiation skills or knowledge of legal and financial matters. They want to arm themselves with a very strong person to make up for the skills they don’t have.
“In their mindset, they go to the lawyer and the lawyer says, ‘Well, the law says you should get X amount of dollars of support per month. How come he’s not giving it to you?,’ or ‘She should be working right away. Why is she not working?’ They hear that the only way to achieve a successful outcome is if a judge gives it to you.”
The client, says Boutet, is likely to listen to the lawyer’s advice, and if the lawyer isn’t trained in mediation or collaborative law, it’s unlikely they’re going to point the client in that direction. Boutet knows that great results are achieved in the out-of-court systems all the time, at much less emotional and financial cost to the clients and the entire family.
“Why are we so quick, as a society, to say it’s better to have a judge telling the family things like on what day they can see their kids; what the kids are supposed to do in the summer; and how much money is spent on clothing,” she says. “Why is it that at the first sign of difficulty in pre-court negotiations, lawyers often turn to court?”
Ontario does not require mandatory mediation in family law proceedings – though the topic has been debated – and Boutet says because mediation remains voluntary, attempts at resolving through mediation sometimes may be faint.
“There’s no real commitment to that system,” she says. “The other problem with court mediation is they’re already in the court system, so we haven’t caught them before they engage in the system. We always say to clients, ‘Would you rather have a judge tell you what to do, or roll up your sleeves and maybe not get exactly what you wanted, but at least do it yourself and decide what’s happening with your family?’”
Court processes are often conflict-based, says Boutet, with parties expected to speak negatively of one another.
“That’s where the damage begins,” she says. “Working together to sort out what’s best for the family is a completely different mindset. My intention is not to send people to an arena that’s, in my opinion, very scary, expensive and traumatic for everyone involved. By the time people who enter the court system decide to settle, they’re completely devastated. They settle because they’re exhausted, they’ve run out of money, and they’re completely disenchanted with any chance of getting the good result they thought they could get in the system.”
But Boutet notes there are certain types of files that require court processes, and she’ll always refer her clients to the court system in those cases.
“The court system is really important and it’s good to have it because in certain cases, the parties need the clout of a judge to make them do what they have to do,” she says. “Having a judge make the decision is the only way to bring finality to the issue.”