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New Research on the Suitability and Cost of Family Law Dispute Resolution Processes

Thursday, April 5, 2018

There is perhaps no area of law where the emotional and far-reaching effects of disputes weigh as heavily on those experiencing them as family law. There is now wide-scale recognition from within the justice community[1] of the need for reforms in family law that reflect progressive values, which offer a continuum of adversarial and non-adversarial dispute resolution methods, and which contemplate modern and innovative service delivery processes. However, there remain significant gaps in the research available on the costs, overall satisfaction with, and benefits and limitations of the dispute resolution methods commonly available to address family law problems. Understanding what works, for whom, in what ways, and at what costs will help to shape policies that will serve the needs and interests of those who experience family law problems and whose lives are significantly impacted by the outcomes of family disputes.

The Canadian Research Institute for Law and the Family (CRILF), in partnership with the Canadian Forum on Civil Justice (CFCJ), and with support from the Alberta Law Foundation and the CFCJ’s SSHRC-funded Cost of Justice research grant[2], recently conducted a study to measure the cost implications, effectiveness and suitability of four dispute resolution methods for family law disputes: litigation, collaborative processes, mediation and arbitration.

The primary objectives of this study were to:

• Aggregate cost data on the four dispute resolution methods evaluated;
• Gain insight on experiences with, and perceptions of processes to resolve different family problems;
• Apply a modified social return on investment (SROI) analysis that offers a common set of parameters around which to compare the financial impacts and social value of each method of dispute resolution relative to the seriousness of the family law problem; and
• Identify information that could prove useful for shaping programs, informing policies or services, and driving thinking about opportunities for reducing costs and improving overall experiences with dispute resolution in the family law context.

The study involved an online survey of lawyers practicing in family law in order to gather information about their use of, and views on collaborative processes, litigation, mediation and arbitration.[3] A total of 166 lawyers, practicing in Alberta, British Columbia, Ontario and Nova Scotia completed the survey. The survey, which consisted primarily of closed-ended and rating scale questions, was organized by dispute resolution process, with similarly worded questions included in each section. Questions related to the cost of services were open-ended and respondents were also asked a series of demographic questions about age, gender, location and year of call to the Bar.

The survey resulted in a number of interesting findings and revealed high levels of consensus among lawyers as to their preferences for using certain methods of dispute resolution over others, based on various considerations including: the best interests of children, threats to safety, reducing potential for conflict. As for specific questions around cost, lawyers who participated in the survey offered a range of billing amounts for their professional services (including fees and other related services). For persons who experience family law problems, as well as for researchers, policy makers and other justice stakeholders, these cost estimates offer useful data points for better understanding and informing discussions around the costs, value, and benefits associated with using collaborative processes, arbitration, mediation and litigation to resolve family law problems.

In addition to a comparatively lower cost range for resolving disputes – from $1,000 to $100,000 — 94.0% of family lawyers agreed that the results that they achieve through collaborative processes are in the interests of the client and 98.9% agreed that the results are in the interests of the client’s children. Conversely, 36.1% agreed that collaborative processes are suited for high-conflict family law disputes. By contrast, 87.1% of lawyers disagreed that litigation was cost-effective, with the cost range for resolving disputes through litigation reported between $2,000 and $625,000. Another striking statistic in the use of litigation was the number of respondents — only 2.8% – who “strongly agreed” and a further 28.4% who “agreed” that the results achieved through litigation are in the client’s interest. Further, 30.2% agreed (strongly or otherwise) that the results are in the interest of the client’s children. However, with respect to processes best suited for high-conflict disputes, litigation was seen as a suitable process by 64.2% or respondents.

By way of comparison, the cost range indicated for resolving family problems through mediation was $630 to $250,000 and the cost range given for resolving family justice problems through arbitration was $2,500 to $100,000. It should be noted as well that the cost estimates presented here do not include the costs to engage other professional services (e.g. financial specialists, child specialists, etc.) as part of the dispute resolution process. Questions related to those costs were included in the survey and data on the hourly and total costs for those services are discussed in the final report. Also of note, 90.2% of respondents agreed that results achieved through mediation are in the client’s interest (and 85.4% agreed it is in the interest of the client’s children), while 34.2% agreed that the results achieved through arbitration are in the client’s interest (and 39.5% agreed that they are in the interest of the client’s children).

There is undeniably more work to be done to get a comprehensive view of the costs, benefits and appropriateness of various dispute resolution methods in addressing problems in family law. As debates ensue about changes to family law in Canada, and as we contemplate ways to improve access to justice, empirical data from studies like this will offer important insights into areas where support and resources can be directed to improve outcomes in family law.

The Evaluation of the Cost of Family Law Disputes: Measuring the Cost Implication of Various Dispute Resolution Methods report is available on the CFCJ website: https://stage.cfcj-fcjc.org/sites/default/files/docs/Cost-Implication-of-Family-Law-Disputes.pdf.