ADR in family disputes saves time, money: study

By AdvocateDaily.com Staff

New research that shows family lawyers consider alternative dispute resolution (ADR) to be both more efficient and less expensive than litigation and acknowledges the value that family lawyers place on mediation and collaborative approaches, St. Catharines family lawyer Sharon Silbert tells AdvocateDaily.com.

The study found that alternative dispute resolution — mainly collaborative family law and family mediation — also results in outcomes that are regarded as more in line with the best interests of both parents and children, says Silbert, principal of Sharon B. Silbert Professional Corporation.

The study — An Evaluation of the Cost of Family Law Disputes: Measuring the Cost Implication of Various Dispute Resolution Methods — is based on a survey of 166 family lawyers in Ontario, Alberta, Nova Scotia and British Columbia. It asked them to evaluate their experience using collaborative settlement processes, mediation, arbitration and litigation.

It found that the alternatives to litigation essentially cut the legal fees in half.

“It’s not a surprise but it’s nice to have the confirmation from research and also to have specific figures to refer to, rather than just making a general statement that it’s less expensive and more efficient in terms of timelines,” Silbert says.

According to the study — conducted in collaboration with the Canadian Research Institute for Law and the Family at the University of Calgary and York University’s Canadian Forum on Civil Justice — the cost of a typical low-conflict dispute resolved through collaborative settlement was $6,269 on average while litigation costs were estimated at $12,400.

Even in high-conflict disputes, the cost savings were significant: those resolved through collaboration averaged $25,110 while those involving litigation came in at an average of $54,000. Similarly, the research found that litigation, on average, consumed twice as much time as the alternative processes for both low- and high-conflict divorces.

For Silbert, perhaps the most compelling aspect of the survey was that 85 per cent of the lawyers polled indicated that the results achieved through the alternative processes better served the interests of the children, whereas only 30 per cent of lawyers believed the outcome in litigation were in the best interest of the children.

“That in and of itself is interesting,” she says. “It reinforces the decision I’ve made to focus my practice exclusively on out-of-court settlement of family law issues and consensual dispute resolution.”

For the past five years, Silbert has centred her practice exclusively on consensual dispute resolution — settlement of family law issues through negotiation and agreement, rather than having the outcome decided on by a family court judge or an arbitrator.

She feels her clients are better served by the alternative approaches.

But the study also raised an issue Silbert feels is worthy of further examination: while almost all of the lawyers agreed they should try to resolve disputes through co-operative processes, most indicated that in practice, litigation is the most frequently used method.

“There’s a disconnect there, and the authors of the study point that out,” she says. “It begs the question: why is litigation still so widely used when lawyers themselves are saying in many circumstances it is less cost-effective, takes longer and results in outcomes that may not be in the best interest of the clients and their children?”

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