Unbundled legal services could help low-income clients

By AdvocateDaily.com Staff

Access to justice is not simply a question of how to provide more litigants with legal representation in the courts, St. Catharines family lawyer and mediator Sharon Silbert writes in Lawyers Weekly.

“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,” she writes in the article.

Silbert notes that attention given to the issue of access to family justice often focuses on self-represented litigants, whose number and experiences are “concerning.”

The lawyer points to former Chief Justice of Ontario Warren Winkler’s observation that “access to a justice system does not necessarily equate with access to justice.”

Silbert says in order to achieve meaningful access to family justice, there needs to be a broadening of the focus to establish a more prominent role for consensual resolution and family lawyers can do more to improve the situation, including offering settlement-oriented unbundled legal services.

She writes that some individuals dealing with family law problems would be better served using the limited resources they have “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.”

Silbert, however, notes that mediation may not be appropriate in some cases where there are concerns about domestic violence, power imbalances or addiction or mental-health issues.

But overall, she stresses that mediation can be an effective tool to meet the needs of individuals who cannot afford full legal representation while, at the same time, decreasing the number of family-law cases making their way through over-burdened courts.

“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,” she writes.