Helping clients identify the most appropriate dispute resolution process for their family just got a lot easier thanks to a new study in the UK. It is the report of a three year study on the usage, experience and outcomes of family mediation, lawyer negotiation and collaborative law: Mapping Paths to Family Justice.
The researchers studied almost 3000 people across the UK, followed by interviews with almost 100 of them. As well, and most remarkably, the researchers recorded mediation, lawyer-negotaition and collaborative law processes to gain deep insight into how the processes work and how clients respond to them.
The results are surprising in some ways and predictable in others. Some findings:
– for those experiencing separation, the primary source of information about out-of-court dispute resolution options is family lawyers. In the UK, funding cuts have eliminated all legal aid in family law except for mediation. As a result, public awareness of all DR options has declined as fewer people are consulting lawyers before commencing proceedings. In Ontario, we are lucky: Legal Aid Ontario has actually increased funding for family law, particularly for the negotiation, including mediation, and drafting agreements.
– emotional readiness to participate in any form of negotiation was important, with some mediators in particular failing to fully identify this factor. Combined with this was screening for violence and other power imbalances that often failed to identify, assess or manage risk in a way that made vulnerable parties feel safe. “Our study found worrying evidence of cases where screening appeared not to have occurred, or not to have been responded to appropriately.” Similar challenges exist in Ontario where only accredited mediators are required to screen for power imbalances, and where many lawyer-mediators in particular still do not follow best practices in screening.
– client satisfaction rates with mediation (41% of the omnibus survey and 75% of those interviewed) were considerably lower than our experience in Ontario’s court-connected mediation (almost 90%) programs. “Those who were not satisfied were most often those who felt pressured into mediation.”
– financial disputes are easier to settle out of court, regardless of the process chosen, than parenting issues.
– mediation achieved higher resolution rates than lawyer-negogtiation, but this may be because the clients who choose mediation have lower levels of conflict. Settlement and satisfaction rates with collaborative law were high particularly on financial matters, but the study sample was low given the limited number of people who can afford that process.
– it is important to try to identify those cases that are not likely to settle at the outset, to avoid wasting time and expense for parties. These include cases involving intractable conflict, rigid expectations about outcomes, coercion and control, and opposing ideological positions regarding best interests of children. Importantly, another reason for non-settlement in mediation was the non-binding nature of mediated outcomes , called Memoranda of Understanding (MOU). This is a problem in our jurisdiction as well, where many mediators send the parties home with well drafted MOUs that, without legal advice and proper format or a court order, are not binding. We however are fortunate that LAO has stepped up with more funding to support mediated outcomes, and our mediators are learning to draft in terms that can be incorporated into court orders more readily.
– most interesting are the findings about the different norms that men and women were found to bring to the table. The predominant norms for mothers were child welfare and status quo/primary care for children. For fathers, they were formal equality and rights. In financial matters, the predominant norm held by women was to have their needs met, particularly those of the children. For men, it was formal equality and the measurement of contributions.
These findings are enormously valuable for us to consider. Fortunately, the researchers have just received funding to write a book with more extended findings, and it will be one to read when it is published in early 2016.
