Combining Mediation and Unbundled Legal Services to Provide Greater Access to Justice

The following article originally appeared in the July 25, 2014 issue of The Lawyers Weekly, published by LexisNexis Canada Inc. It was inspired by the writings of Kari Boyle, the Executive Director of Mediate BC, on, especially this post.

It is no secret that a significant proportion of individuals who experience family law problems are not getting the help that they need to resolve their disputes fairly and efficiently. Attention given to the issue of access to family justice often focuses on self-represented litigants, whose number and experiences are very concerning. However, we must be careful not to think about access to justice as simply a question of how to provide more litigants with legal representation in the courts.

As former Chief Justice of Ontario Warren Winkler has said, “access to a justice system does not necessarily equate with access to justice.”  To achieve meaningful access to family justice, we must broaden our focus, and work towards establishing a more prominent role for consensual dispute resolution. Fortunately, there is much that family lawyers can do to improve the situation, including offering settlement-oriented unbundled legal services as part of our practices.

Research has revealed that the most significant reason why so many litigants are representing themselves in court is the high cost of legal services. More and more clients are looking for alternative relationships with legal counsel to the traditional retainer/billable hours model, and there is a significant and largely untapped market of clients willing to pay for unbundled legal services.

Although the promise of unbundled legal services is increasingly well-recognized, most of our attention has been focused on providing services to support individuals representing themselves in court. While this is certainly an important function, it does not represent a complete picture of what we might accomplish through ‘unbundling’.

Many self-represented litigants wish to pursue settlement, but do not have the knowledge, tools, and skills to do so on their own. Unbundled legal services which focus on litigation efforts do little to actually resolve disputes. In many cases, individuals dealing with family law problems who have limited resources would be better off using them to hire a lawyer on a limited scope retainer to provide advice on legal rights and obligations and evaluate settlement options, while they handle negotiations themselves, with the assistance of a capable mediator.

The scope of services provided by the lawyer in such an arrangement would be tailored to each particular case, and might include:

– providing substantive legal advice and analysis prior to mediation,
– preparation and/or review of financial disclosure,
– mediation coaching and/or representation,
– assistance with preparing and evaluating settlement proposals,
– helping the client understand his or her best and worst alternatives to a negotiated agreement,
– providing independent legal advice on the terms of an agreement reached in mediation, and
– turning a mediated settlement into a binding separation agreement or consent order.

While these roles are not new to family lawyers, many have not yet considered the potential benefits of offering them as part of a limited scope retainer to self-represented litigants and other individuals who have limited resources to devote to legal services.

Mediation allows clients to maintain control over outcomes, and craft solutions designed to meet their unique needs.  It also provides an opportunity for parties to learn to work together to problem-solve. These benefits are particularly significant in the realm of family law, where individualized justice is key, and where parties often have an ongoing relationship as parents following the conclusion of legal proceedings.

Of course, mediation will not be appropriate where there are significant concerns related to domestic violence, power imbalances, or addiction or mental health issues that might impact a party’s ability to negotiate. However, a skilled mediator will screen for these issues at the outset and, in the majority of situations, mediation leads to resolution quickly and affordably.

Mediation’s efficiency, flexibility, informality, and focus on autonomy make it especially well suited to meet the needs of individuals who cannot afford full representation by a lawyer. The fact that potential clients are unlikely to explicitly ask for legal services aimed at supporting mediation does not mean there is no demand for them. Many self-represented family litigants seeking unbundled legal services do not understand the various processes that are available to assist them in resolving their disputes. It is our responsibility as lawyers to counsel them about options that may be both more affordable and more effective at achieving their goals than simply completing the next step in the court process.

Offering limited scope retainers to support clients through mediation has the potential to contribute a great deal to access to family justice, by serving a portion of the population who might otherwise go without legal counsel. Further, it would do so in a way that would allow them to obtain the greatest value from their limited resources, while simultaneously helping to reduce the number of family law cases making their way through our over-burdened courts.

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