07 Oct A “Cultural Shift” Towards Mediation
The Canadian Bar Association’s National Magazine ran an interesting article in June 2013 about the importance of family law parties having affordable access to legal services. The article names “alternative dispute resolution”, such as mediation, as one of the most necessary shifts in getting family law clients access to legal services.
The statistics cited certainly make a strong case for family law mediation. For instance, the article states that family cases make up about 35 percent of all civil cases, but take up a disproportionate amount of time, with many more events per case, three times as many adjournments and twice as many hearings as other civil matters. All of those “events” cost clients money!
Jacqueline Shaffer, who is the CEO of Legal Aid in Alberta, says that alternative dispute resolution should not be the “alternative”, it should be the first step towards resolution. She explains that in Alberta, 80 percent of legal aid clients that use mediation as a first step to resolving their matter, obtain full or partial settlement of their matter.
When you inform a client about these types of statistics, it does not take much to “sell” a client on mediation. But, it’s surprising how few know about mediation to begin with.
As I build my mediation practice, I am thinking a lot about how to provoke that cultural shift away from an adversarial model. A lot of lawyers are recommending mediation to their clients, and in Victoria, the Provincial Court judges are certainly doing their part to push family law files to mediation before they get court dates. The missing component is educating the public directly.
I often see romanticized ideas of litigation in my family law practice. Clients often seek validation from the court, hoping that a judge will side with them and punish the other party. I think the public needs a bit of schooling on the realities of the court process; the cost, the time commitment, the paperwork, the stresses on them and their children, and the fact that rarely in family cases will a client get the validation they seek from a judge. When clients start to believe these realities, they will start seeking alternatives.
I’ll know that a cultural shift has happened when start directly seeking mediation rather than being referred by others and when google searches for “family mediation” outrank searches for “divorce lawyer”. In order for that to happen, though, the public needs education about what mediation is, what the benefits are, and that agreements are taken as seriously as a court order.