This week Legal Aid Ontario announced two new programs (http://www.thestar.com/news/gta/2014/07/03/legal_aid_hopes_to_discourage_feuding_couples_from_acting_as_own_lawyers.html) that signal a renewed commitment to assisting family law litigants and acknowledge the importance of early intervention and support to help families avoid protracted and escalated disputes. Each of the initiatives announced by LAO accept the overriding importance of offering divorcing couples substantial assistance to reach agreement over the terms of their separation via either private negotiation (up to 10 certificate hours) or in mediation (up to 6 hours).
Both initiatives fall squarely within the reasoning of NSRLP’s Action Step #6, Enhancing Mediation and Dispute Resolution Services for SRLs. If SRL’s are to resolve their cases before trial (as more than 90% of cases will do), they need advice and assistance in order to participate effectively in mediation and in judicial conferences designed to facilitate settlement. They also need assistance to think through the options for private negotiation, where this might resolve some or all of the aspects of their case.
I have often heard complaints from lawyers and judges over last two years about SRLs being unwilling to settle. Sometimes, these complainants seem to have a hard time recognizing just how hard it is for someone who is representing themselves in a law suit in which they are highly emotionally invested to approach settlement/ accommodation/ deal-making. I have often been tempted to ask, “How well do you think you would do with talking about settlement if this were your case – and if you were without counsel and without knowledge/ familiarity/ comfort in the legal system?”
It has always seemed to me to be unrealistic and unfair to expect that SRLs will approach settlement processes like a professional third party (e.g. a judge or a mediator), or even a lawyer (reality check – lawyers themselves don’t exactly have a great track record here when it comes to talking seriously to their clients about early settlement possibilities). Personally invested in their dispute, frequently managing transitions and instability in their personal lives, it is frankly unsurprising if “settlement” is close to the last thing on a self rep’s mind. Obviously SRLs struggle with how and whether to move beyond their natural resistance to accommodation and deal-making with their soon-to-be-ex spouse.
Which makes LAO’s choice of two programs designed to support parties in making early settlement evaluations a welcome first step in the expenditure of the additional $30 million for family law initiatives over the next four years.
How we can all help
LAO’s new programs are not just relevant for lawyers interested in family certificate work.
A complete and durable solution to the A2J crisis requires the collaboration and combined smarts of all parts of the system, including justice system actors and users. How can we all help to make these initiatives more meaningful for Ontario families (and possibly serve as models for other provinces)?
1. Family lawyers with long experience in working in family mediation and collaborative law with more affluent clients should consider some participation in these new programs. Skillful assistance is critical if these initiatives are to make a real difference – the last thing we need are lawyers unversed in mediation giving “sniper” type outside advice (shooting down every possibility of settlement) to certificate clients. Never taken a legal aid client before? Consider it as an act of public service, or as a way of building a culture of collaboration and settlement deeper into the field.
2. Other members of the Bar can play their part by informing clients and would-be-clients of these options which will offer a certificate where one spouse is eligible for legal aid and the other makes up to $50,000.
3. The Family Bench should promote these initiatives to SRLs who may qualify. At last the Bench can say something more concrete and practical to (some) family SRLs besides “you really should (in theory) hire a lawyer to help you.”
4. Both initiatives need to be vigorously promoted by court services staff, community clinics and local mediation programs. This is especially important for the settlement program, if would-be clients are to be reached with this information before they have become sucked too deeply into the vortex of family court.
What’s next
LAO’s new certificate programs are the beginning of concrete steps towards providing SRLs with assistance and support to move towards settlement. We know that more than 90% of family cases will settle before trial – but we also know that many presently settle at an advanced stage and often after a vast expenditure of time, money and energy. Instead of complaining about how SRLs don’t settle, we need to offer them support to enable them to do so.
SRLs need legal advice in formulating settlement options, but they also need conflict coaching to help them to evaluate their resolution alternatives. At NSRLP we are also advocating for an enhanced role for conflict coaches –para-legals or law students who do not provide legal advice – who can offer SRLs the opportunity to think through what they need in a settlement.
Conflict coaching – which could also be offered by lawyers – includes helping SRLs identify their bottom lines, priorities and long-term goals, and working supportively with them in considering possible settlement options. This discussion may be exploratory and tentative at first – a primary quality of a conflict coach is a lot of patience – offering SRLs reality-checks, understanding and support. Sound interesting? Contact us at NSRLP (representingyourself@gmail.com).
