Below is my draft proposal prepared for the Attorney-General’s consideration regarding family law and legal aid reform – December, 2020.
Legal Aid in British Columbia remains focused on litigation as the predominant tool of choice in resolving family law disputes.
The standard Family Law Tariff, for example, allows lawyers to bill ‘actual time’ for attending court in litigation but caps time allocatable to alternative dispute resolution options. Further, the funding disbursement offered for mediation is so low that, anecdotally, few if any mediators or arbitrators will accept legal aid referrals.
The updated “Family Law Limited Representation Contract” scheme provides some alternative paths for clients to seek ‘unbundled’ assistance, but continues to operate within a litigation focused context. In the Limited Representation Contract, 3 hours of time may be billed by a lawyer for attending court, but there is no specific provision for alternative dispute resolution (which must be billed under the ‘general preparation’ heading).
Litigation is certainly an appropriate tool in resolving particular family law issues – in particular, matters requiring police assistance or other enforcement powers, when one party refuses to participate in a negotiated outcome, has unreasonable demands requiring an imposed outcome, or if there are significant risk factors.
However, litigation is costly and not always appropriate. Competent family lawyers have a “tool shelf” of many options to resolve family law disputes: including negotiation, mediation, arbitration, hybrid mediation-arbitration, collaborative divorce, and the use of parenting co-ordinators along with litigation as only one of several options.
Particularly from the 1940s onwards, family law disputes have been ‘shoehorned’ into an adversarial system primarily designed to deal with criminal behaviour and resolve business disputes. Adversarial approaches are often not appropriate when resolving many types of relationship and children disputes.
The family lawyer is defined as being a ‘family dispute resolution professional’ under Section 1 of the Family Law Act and is required under Section 8 to choose the appropriate dispute resolution tool from their ‘tool box’.
There are strong arguments to suggest that legal aid options must include better and more viable pathways for lawyers wanting to use these alternative options.
Legal Aid recipients are, by nature of the legal aid prerequisites, disadvantaged in income. Many are not privileged in their educational background. Government must decide whether it is good public policy to arm disadvantaged aid recipients with ‘gladiators’ and force them into an arena staged for adversarial conflict. The weapon provided by Legal Aid is litigation, and other means to resolve the dispute peaceably are hidden from view, difficult to obtain, or unfunded.
A new type of Limited Representation Contract, which encourages parties and lawyers to resolve matters outside of litigation, is therefore proposed as a demonstration project.
A significant review of family law litigation outcomes across by the Canadian Research Institute for Law and the Family in 2017 found low satisfaction ratings, with even lawyers unable to admit that the results were usually in their client’s best interests or children’s best interests:
- When asked if their clients prefer litigation over other dispute resolution processes, the majority (59.6%) disagreed or strongly disagreed. Only 7.4% strongly agreed or agreed, and one-third (33%) neither agreed nor disagreed. […]
- When asked how much they agreed that the results they achieve through litigation are in the client’s interest, less than one-third of respondents (31.2%) strongly agreed or agreed with only 2.8% strongly agreeing; 17.4% disagreed or strongly disagreed, and the majority of respondents said they neither agreed nor disagreed. Comparable findings were reported when lawyers were asked if they agreed that the results they achieved through litigation are in the interest of the client’s children. Less than one-third (30.2%) strongly agreed or agreed, 22.9% disagreed or strongly disagreed, and 46.8% said neither.
The survey concluded with the observation that, “[the] findings beg the question of why litigation continues to be so widely used by separating parents to address family law disputes”.
Legal Aid BC also acknowledges that family litigation is stressful, and has even been required to produce resources to assist clients in dealing with that stress.
Low satisfaction ratings for litigation are partly due to litigation being used as a resolution tool in cases where it is not required.
The costs of litigating family law matters are significant. For self-funded parties, the average fee to resolve low-conflict disputes through litigation was $12,400, and the average fee to resolve high-conflict was $54,400. Collaborative settlement outcomes averaged approximately half the fee. Although fees on the legal aid scale are lower, the comparative cost factors likely remain.
The non-financial costs to society are even more significant. The Canadian Research Institute review, in an admittedly imperfect estimation of social value and cost of litigation concluded:
- For every dollar spent on resolving a high-conflict dispute through collaborative settlement, $1.12 in social value is created, and for every dollar spent on mediating a high-conflict dispute, $1.00 in social value is created. As with low-conflict disputes, the SROI ratios are significantly lower for arbitration and litigation. For every dollar spent on arbitrating a high-conflict dispute, only $0.38 in social value is created, and for every dollar spent on litigating a high-conflict dispute, only $0.04 in social value is created. Not only are the costs of arbitrating and litigating a high-conflict dispute considerably higher than other dispute resolution processes, the satisfaction levels with the results are lower. The extremely low SROI ratio for litigation also reflects the increased costs to the family justice system resulting from repeated court appearances.
Not accounted for in that costing is the intangible personal cost of delays and possible impact on children resulting from unrequired litigation. It has long been understood that delay in resolving family separation matters results in additional polarization and alienation risks:
- Many observers recognize that the court system takes too long to resolve issues, especially for high conflict families. When high-conflict families experience significant delays in judicial decision-making, or when court-ordered evaluations take too long, families tend to become polarized and alienation dynamics flourish. Finally, at times it appears that the entire family law system is focused on pathology and blame rather than problem solving and conflict resolution. Such dynamics take a family that might otherwise resolve their differences and create a fertile environment for alienation to develop.
The Canadian Research Institute review concludes by making the following observations:
- a) low- and high-conflict disputes that are litigated take about twice as long to resolve than they do using other dispute resolution processes;
- b) it costs about twice as much to resolve a dispute through litigation than through other processes;
- c) the results they achieve through litigation are less likely to be in the client’s interest, or in the interest of the client’s children, than the results achieved through other dispute resolution processes;
- d) clients are less likely to be satisfied with those results achieved through litigation than the results achieved through other dispute resolution processes; and,
- e) three-quarters of the lawyers who use litigation said that it is not their preferred dispute resolution process.
- These findings beg the question of why litigation continues to be so widely used by separating parents to address family law disputes.
ALL believes that it is a mistake to argue that litigation is not required as one tool in resolving family law matters. When a child has been removed from one parent’s care by an abusive partner, and has gone missing – the courts alone have power to mobilize immediate action to locate and retrieve the child in danger. When one party is refusing to pay support, and is refusing to talk or negotiate, then an outcome must be imposed on them. When parties with various challenges are unable to properly, fairly, or reasonably participate in a negotiated outcome, court or arbitration is required to impose a resolution. However, it is a tool that is vastly overused.
Alternatives to Litigation
Under Section 8(2) of the Family Law Act, solicitors are required to certify that they have considered basic negotiation or other ADR approaches prior to litigation.
Some of alternative resolution option tools include:
- Basic mediation (without solicitors in attendance), as offered by the Justice Access Centre (JAC) and private practitioners, has offered a valuable tool despite a lower resolution rate than solicitor-assisted ADR and some other methods.
- Med-Arb has evolved in recent years to deal with limitations of basic mediation – it begins with basic mediation but unagreed issues are resolved by the mediator-arbitrator.
- Family Arbitration – involves the parties agreeing to accept the determination of an expert to resolve their dispute, usually more time effectively than court-based approaches. Family arbitrators are required to have 10 years of experience in assisting to resolve family law matters.
- Collaborative Divorce, pioneered by lawyer Stu Webb in the 1990s and 2000s has each party represented by a lawyer also trained in mediation and a ‘team based’ approach to resolution.
- The ‘1 Day Divorce’ program is a hybrid mediation-collaborative divorce model – a team-based approach involving a lawyer conducting a facilitative mediation or med-arb with neutral ‘experts’ (such as divorce financial experts) at the same table, and reports a 90% resolution rate. 
- Solicitor Assisted mediation – such as used by Legal Aid in several jurisdictions, with details of some Australian examples set out below.
Each tool has strengths and weaknesses. For example, basic mediation as offered by JAC relies on parties to be reasonable and communicative – which is not always the case. Parties to JAC mediation also do not have the benefit of legal advice, and often litigate JAC agreements made without advice.
Collaborative Divorce can be costly and does not guarantee an outcome.
Court based approaches, such as JCC and FCC listings, are still court-based approaches, require litigation to be commenced before starting, take many months to book, and rely on significant and costly court resources to manage.
Solicitor assisted mediation is not suitable in all cases, but is significantly underused and has high success rates. In the South Australian Legal Aid system, for example, high settlement rates of over 80% have been achieved. 
In that system: 
If a party to a dispute has received a grant of legal aid the Commission will usually provide funding for the party to attend a lawyer assisted family dispute resolution conference, held at the Commission.
The mediators are vetted and contracted directly by Legal Aid on the basis of training and experience, and all issues relating to their funding and appointment to the file are handled directly by Legal Aid – removing a significant deterrence and restriction from lawyers seeking to use this approach. Other neutral experts, such as children’s experts, are available to the parties. This approach is now the default approach used, except for the most urgent matters. Parties must attempt this approach, and participate reasonably and genuinely in the process, before applying for aid for litigation. 
The success rate of this program, with over 80% settlement resolutions reached on legal aid family law matters, is notable – and diverts vast numbers of legal aid matters from litigation in that jurisdiction. Note: resolution rates of matters dealt with by Family Justice Counsellors are as follows:
The following case study is provided of that program:
- Both parties agreed to attend an initial lawyer assisted family dispute resolution conference. After separation, the father had threatened the mother and young child with severe violence and the mother obtained an intervention order for her protection.
- An extensive intake process was undertaken with both parties to determine if a conference could be safely held. The intervention order allowed mediation to take place. Significantly, both parties were legally represented and it was assessed that the conference could be held.
- The mother vehemently opposed the child spending any time with the father but it was agreed that if the father undertook certain programs and obtained a medical report she would reconsider that position. A review conference was set up and it was established that the father had complied with these conditions. It was agreed that that the father would spend time with the child at a children’s contact centre.
- A third conference was held and the father provided a psychologist’s report and a favourable report from the children’s contact service. The mother was able to shift somewhat in her position and the matter settled on a final basis with a graduated regime to overnight/alternate weekend time, with a view to returning to community based family dispute resolution in the future to discuss arrangements once the child reached a certain age.
- The matter was concluded by a written agreement and no court proceedings were necessary.
- A demonstration project offering suitable Legal Aid clients with funding for “Family Law Limited Representation Contract – ADR” modelled on the Australian system and other similar systems.
- In the initial demonstration stage, legal aid applicants will be assessed for suitability, and asked to confirm that there are no current protection orders limiting communication and mediation.
- Lawyers to be provided with funding for “Family Law Limited Representation Contract – ADR”, including appropriate preparation time for instructions and attendance.
- The lawyers will be required to undertake a further risk analysis of their client prior to appointing a mediator or mediator-arbitrator.
- Mediator-arbitrators to be funded directly by Legal Aid BC, from a roster list of suitably trained and experienced family mediators and mediator-arbitrators.
- In appropriate cases, funding for additional neutral experts – such as child psychologists or Registered Clinical Social Workers or a parenting coordinator (in difficult children’s matters) or a Financial Specialist could be considered (borrowing from Collaborative Divorce ‘team based resolution’ approach, and using specialists from these rosters).
- The parties seek resolution through this team-based ADR approach:
- In a med-arb setting, issues not agreed are resolved by the mediator-arbitrator after considering submissions by all parties seamlessly through the mediation and in considering the submission of any neutral experts.
- If a mediator alone is appointed or agreed by the parties, issues agreed are reduced to writing. If the mediator forms the view that one party has not genuinely or reasonably participated, then they may report that conclusion to Legal Aid which may mean that the party is asked to explain the basis for seeking further funding.
- Parties that cannot resolve their matter though solicitor assisted ADR can apply for an extension of funding for litigation or another approach. However, if resolution rates approach similar resolution rates seen in other jurisdictions (of over 80%) it is suggested that many matters will be diverted prior to litigation being required.
Nick Greer, LLB, GDLP, QMed, QArb
 Legal Aid BC, Family Law Limited Representation Contract Summary – Update September 25, 2020: “Services may be provided in relation to Provincial Court or Supreme Court matters” (p.1).
 Jacobius, M. 33 Fam. Advoc. 6 (2010-2011) Civility & the Family Law Gladiator
 Paetsch, J. (2017). AN EVALUATION OF THE COST OF FAMILY LAW DISPUTES: MEASURING THE COST IMPLICATION OF VARIOUS DISPUTE RESOLUTION METHODS. Calgary, Alberta: Canadian Research Institute for Law and the Family. Page 18.
 Paetsch, J (2017), p.54.
 Paetsch, J (2017), p. 30.
 Paetsch, J (2017), p.42.
 Stahl, P. (2007) Understanding and evaluating alienation in high-conflict custody cases. Wisconsin Journal of Family Law, 24(1), 20–26.
 Paetsch, J (2017), p.54
 Annual Report 2019-20 Legal Services Commission of South Australia, retrieved from www.lsc.sa.gov.au, page 30.
 Ibid, page 30.
 Annual Report 2019-20 Legal Services Commission of South Australia, retrieved from www.lsc.sa.gov.au, page 30.
 Ibid, page 31