It is becoming rare to see a family lawyer walking the halls of a courthouse en route to a client’s matter that’s been set for hearing before a judge.
Family law practitioners, particularly in and around Toronto, are instead opting for mediation, arbitration, and the hybrid med-arb process, which are proving to be more dependable, efficient, and cost-effective.
“I’d say 75 per cent of my cases I settle through negotiation with the other side,” says Lorne Wolfson, a family law specialist with Torkin Manes Cohen Arbus LLP. “The 25 per cent that aren’t settled, I resolve through mediation or arbitration.”
He rarely goes to court. “I suspect those statistics would be similar for most of the senior lawyers in Toronto and probably most lawyers with experience.”
Court backlogs or understaffing at the Ontario Superior Court in regions surrounding Toronto, requiring often higher-priced counsel to sit around waiting and possibly not even get in for an appearance, are reasons they are turning to mediation and arbitration.
“The hybrid mediation-arbitration is particularly popular in Toronto,” Wolfson says, quite possibly because the option is “further advanced” with more trained mediators and arbitrators available to hear matters.
Laurie Pawlitza is also a family law practitioner at Torkin Manes in Toronto, and says arbitration is a practical alternative for lawyers with clients beyond the GTA.
She says centres such as Oshawa, Brampton, Newmarket, Barrie, Peterborough, Lindsay, and Hamilton are “immensely under serviced” in terms of staff.
“Not surprisingly, even though you have all your materials prepared, the judge isn’t going to have the opportunity to do the kind of justice they would like to. It’s a huge problem.”
To assist clients better, “We just go running to mediation and arbitration.”
Pawlitza estimates upwards of 85 per cent of her clients who would have gone to court now select arbitration over court, a proportion that has steadily risen over four years.
Lawyers can choose their arbitrator and, “You’ve got somebody who will stay late, who will resolve things by conference calls,” she says. “Judges will do that too, but they just don’t have opportunity with all they have on their plate.”
Clients whose matters include property division normally heard in Superior Court also prefer mediation.
“This is private. A lot of times clients don’t want to air their dirty laundry in a public forum,” Wolfson acknowledges.
He points out that the alternative process is much more expeditious and, once a date is scheduled, “you know it’s going to go ahead on that day at that time.”
He says, “It can be a little more expensive because they have to pay for a mediator, but, in our experience, it ends up being cheaper because it’s more efficient. People accept the results much better.”
The trend, Wolfson says, is reducing backlogs should clients opt for court. “Most of us don’t go to court anymore, so I’m hearing there aren’t backlogs.”
Yet there are a few downsides to the popularity of mediation and arbitration.
“People with lawyers, and particularly good lawyers, are going elsewhere,” he says. So “what the judges are left with in the courts are all the unrepresented” clients who can’t afford representation.
Judges, he says, are feeling that family law lawyers have all but deserted the courts, leaving a dearth of case law.
“If you don’t have reported cases in the court system, you don’t develop the law, because arbitrations are all private,” he observes.
“Some judges and academics don’t like that,” he says, “but I don’t really care about that because I’m getting cost-effective results for my clients, and developing the law isn’t my highest priority.”
He suggests, however, “Over time, that will be a problem, as more and more people opt out because we’re not getting reported cases and the law is not developing across the board.”
Pawlitza, a bencher at the Law Society of Upper Canada, agrees the trend toward arbitration will affect the cumulative bank of case law. It also can be disappointing for practitioners with a particularly interesting legal twist in a matter to not be able to establish case law.
She notes that the legislative amendments include a provision requiring arbitrators to create a record of the arbitrations and keep it for a specified period, and although confidential, could potentially be used to create a sort of case law database.
“Ultimately, I think [case law] is a critical issue that will need to be resolved,” she says.
Still, she adds, the alternative yields “the best possible result, from my perspective, for my clients.”
Wolfson, also an appointed dispute resolution officer with the Superior Court, also attributes the increase in mediation and arbitration to changes introduced in February 2006 to the Family Statue Law Amendment Act that changed the Arbitration Act and Family Law Act.
Those changes, which Wolfson describes as facilitating a “re-birth” of family arbitration, include pending professional requirements for arbitrators.
In response to the requirements, to be introduced in accompanying regulations, the ADR Institute approved a new designation of Certified Family Arbitrator, for which Wolfson and psychologist and lawyer Dr. Barbara Landau have developed a 40-hour curriculum and course that’s been well attended by mediators, arbitrators, and mental health professionals who act as parenting co-ordinators in high conflict matters.
The course covers everything from the evolution of mediation and arbitration to writing agreements and a mock mediation session.
Wolfson says that, while most lawyers are opting for the med-arb process, rarely is arbitration required. “In my experience, 90 per cent of cases never get to arbitration but it’s the threat of arbitration leveraged during mediation.”
He adds there’s no hard and fast numbers to illustrate the trend by family law practitioners to avoid the courts and suggests a study would be helpful to let academics assess the impact it could have on the system in general. “Part of the problem is a lot of it is anecdotal and there hasn’t been a lot of publicity about this.”