Supporting Families Through Change: Unbundled Legal Services Project Part 6

In part 5 of this series on the unbundled legal services surveys, we summarized the experience of family members with financial arrangements for unbundled services, their satisfaction with those services and their suggestions for change. In this final post in this series, we explore the survey responses about unbundling from family mediators. The formal summary of survey results can be found here.

Demographics

We received 17 responses in total. Not all respondents answered all questions. We were grateful for the support of Family Justice Services and more than half of respondents were family justice counsellors. 93% of the respondents were women. Ages ranged from 31 – 70 with an average age of approximately 52. 80% reported living in a city, 13% in a town and 7% in a rural area. While the number of respondents was relatively low, the results they were provided were rich and helpful.

The Importance of Access to Legal Advice

Mediate BC’s 2015 Business Survey (of Roster mediators) revealed that 55% of family mediations involved at least one participant who was not represented by counsel. Respondents to this survey reported that almost 100% of their mediation clients attended mediation on their own (without legal representation at the table) and that 75% were not represented at all by counsel (again, this may be influenced by the high proportion of FJC respondents). These results are slightly higher than the number of self-represented family litigants in either BC Provincial Court [note 1] or BC Supreme Court [note 2].

We asked mediators to describe how important it was for parties to have access to legal advice / legal services for various mediation-related steps. The results are shown in this chart and demonstrate strong support:

When are legal services extremely important

The responding mediators prioritized the need for their clients to access legal advice/services at the outset and then at the end of the mediation process. Few emphasized the need for representation during the mediation sessions themselves. A moderate number felt it was important for families to be able to access lawyers for legal advice or coaching as the mediation process continued.

This may be a result, in part, of the large number of family justice counsellors who participated in the survey. They mediate with parents about guardianship, parenting arrangements, contact and support and very few are represented by counsel. Two FJCs commented:

People are referred for legal advice throughout (the) process, some access it and some do not.

It is extremely important for parties to have access to legal advice, always. My experience is that if the principles of mediation are applied along with a strong ethical approach, most parties decline legal advice.

We suspect that if more private mediators had responded they would have emphasized the need for legal advice throughout, particularly for issues of property division and spousal support.

We asked what type of person most needs legal services to support them in mediation. The results in rough order of priority were:

  • Those who have experienced domestic violence or some other form of significant power imbalance
  • Those who have spousal support issues or property division issues
  • All people need access to legal advice/services
  • Those without knowledge of the system and law (knowledge gives empowerment)
  • Those with mental health or capacity issues
  • The “working poor”

Types and Frequency of Unbundled Legal Services

There are a number of ways that family members can access legal advice and representation including services provided by duty counsel or Family LawLine (available for free to eligible families and very supportive of families using family justice counsellors), CBC Lawyer Referral, Access Pro Bono clinics, etc. Unbundling is just one approach for the delivery of affordable legal services and we know from the public survey responses that family members have difficulty finding lawyers who are willing to provide services in this way. Some of the mediators may have included duty counsel and Family LawLine as examples of unbundled legal services.

We then asked how the mediators thought access to unbundled legal services affected their ability to participate effectively in mediation.  The majority of the respondents identified the benefits of reassurance to the client in their decision-making, particularly before signing an agreement.

All respondents confirmed that they always or sometimes either recommend that unrepresented parties in their mediations seek unbundled legal services or refer parties to these services. However, 85% of respondents said that there were insufficient unbundled services available for parties in their family mediations. They noted with appreciation the support of duty counsel and the Family LawLine but lamented that these services are limited in scope (they do not deal with property division), not all family members meet financial eligibility requirements, there are often wait lists and these services are not available in all communities.

Independent Legal Advice on Agreements

One of the most well-known forms of unbundled services is independent legal advice (ILA) on a memorandum of understanding (MOU) or agreement created during mediation. 87% of respondents to this survey reported that they draft binding agreements for parties to their mediations.  Note that FJCs can prepare binding agreements for matters within their mandate. This is not a service provided by LSS duty counsel or Family LawLine. Only 50% of respondents said that there were sufficient lawyers willing to provide ILA in their communities.

They noted that parties frequently decide NOT to seek ILA on an MOU or agreement coming out of mediation. Reasons can include that the parties:

  • Do not believe it is necessary
    • particularly if the issues are all child-related
    • the agreement is very basic and uncomplicated
    • there is a high level of trust between the parties
  • Just want to get it over with and ILA take too much time
  • Believe ILA is too costly
  • All of the above

If ILA was more available to their clients on an unbundled basis, 80% of respondents said that their clients would be likely or very likely to seek and obtain ILA.

The Gap

Mediators are one of the key groups of “intermediaries” working with families experiencing separation and divorce. Mediators to this survey confirmed their frustration when they are unable to refer their clients to accessible and affordable legal services to support their mediation experience. There is a gap here which is part of the larger gap experienced every day by self-represented litigants. They need legal advice; they know they need legal advice; they can’t afford legal advice in the traditional sense. This gap is what the Mediate BC Family Unbundled Legal Services Project and the Access to Justice BC Unbundling Initiative are trying to address. We need to encourage BC family lawyers to offer and promote unbundled legal services.
We need to encourage BC family lawyers to offer and promote unbundled legal services. Click To Tweet

Suggestions for Improvement

Many respondents identified a need for a roster of private unbundled lawyers.  One respondent noted:

FJCs cannot refer to specific lawyers so I suggest they shop around for lawyers who have flexible fees, but we could refer to a roster of lawyers who provide unbundled services. I would refer often if that existed.

One of the goals of this project is to create a public-facing list of these lawyers (with key information including fee arrangements) to make them more accessible to the public, to the mediation community and to other intermediaries.

Other suggestions included:

  • Expand free legal services for property and spousal support issues
  • More information and promotion about unbundling
  • Increased legal aid funding for family disputes
  • To remove or increase financial eligibility requirements for LSS legal advice/coaching when referred by a mediator

One respondent raised an important point about unbundled services to support the mediation process:

The struggle I have with the unbundled services are that there are some lawyers that are supportive and very helpful to the mediation process and some lawyers are not helpful. A lawyer’s philosophy, knowledge and attitude towards ADR is key. 

The project is exploring the best way to provide some information as part of the list that will assist family members and mediators to choose the unbundled lawyer that best meets the needs of the parties and the situation.

Closing Comments

This is the closing post in this series. You can access all six posts in this series, and other interesting posts, on the Mediate BC Blog.

Information about the BC Family Unbundled Legal Services project can be found here. Summaries of the responses to all three surveys are posted on that page.

Mediate BC is enormously grateful to the lawyers, mediators and members of the public who participated in these surveys – thank you!  The information was really helpful. Stay tuned for more information.

Note 1:  The 2014/15 Annual Report for the Provincial Court of BC reports a 41% self-representation rate in family matters.  A self-represented appearance is defined as one at which at least one party is not represented by counsel or agent.

Note 2:  Statistics for the BC Supreme Court are more difficult to find.  Justice Victoria Gray’s 2013 study (“Filling in the Blanks: Towards a More Inquisitorial Process (with Relevant and Organized Evidence) – Summary of a Study Regarding the Law of Evidence and Self-Represented Family and Civil Litigants in the B.C. Supreme Court”) states that, with respect to BC Supreme Court trials, “Between one-third and one-half of all family Trials involved at least one SRL.”

Separation: Do it Better than ‘The Simpsons’ with Family Mediation

Marge and Homer SimpsonWhether you watch The Simpsons regularly or, like me you have missed a few, it’s easy to jump back into it and when I heard that Season 27 started off with Marge and Homer in a “trial separation,” I set my PVR. Spoiler alert! Homer falls asleep during couples’ counselling with Marge and dreams that they separate.  The episode chronicles some of Homer’s highs and lows that accompany the life-altering event of a separation.

Have to Order New Cheques!

Homer does not adjust so well initially and thinks that Marge will take him back until he calls the home number and discovers that she has referred to her maiden name on the family voicemail. At this point Homer realizes that there will be a lot to do and he will even have to order new cheques! This is reflective of the reality that there is a lot to do when couples separate and they may shift into having a more business-like relationship as they start the process of separating financially.

Mediators can help provide you with the information you need to become financially separate, as well as when you may need other professionals to provide legal advice or fully understand the tax implications of a possible agreement. Before starting the mediation process you could start an inventory of all separately and jointly-owned assets (e.g., cash, investments, vehicles, real estate) and a list all your outstanding debt (e.g., credit cards, loans, mortgages). During the mediation process you will be asked to provide documentation to support decisions around valuing your assets and debt, keep in mind that the date of valuation will be unique for each couple and something you agree on in mediation. You may also want to start thinking about your monthly and annual expense budget (e.g., food, medical care, housing, clothes).

Skype You at Christmas!

Later on in the episode both Marge and Homer are dating new partners. Lisa, (Marge and Homer’s daughter), had to cut a conversation with her dad short, saying she would “skype [him] at Christmas” because she had to “go pony shopping” with Marge’s new partner.  While comical for the show, this is not typical of parenting time over Christmas that couples living in the same city typically land on in mediation.

Mediators recognize that every family is unique and will support both spouses to establish a parenting schedule that is in the best interest of the children and also works for both parents. I ask people to bring an open mind, a willingness to discuss the issues and to listen to the perspective of the other person with the intention of negotiating a resolution. It can also be helpful for parents to think 20 years into their children’s future and about the kind of memories and childhood experiences they want them to have.  Your answers will impact the kind of co-parenting relationship you will want to establish with the other parent and will also impact the parenting arrangements you make in mediation.

Family Mediation

Family mediation can help you and your ex-spouse navigate the process of separation and all of the decisions that you will need to agree on:

  • where your children will live or how will parents share parenting time,
  • how decisions will be made for the children,
  • who will pay child support and what are special and extraordinary expenses,
  • what do you own as a couple and what do you owe together and how this could be shared; and
  • if both parties agree that spousal support is an issue then what amount of spousal support will be paid and for how long.

Mediation can offer you an unbundled approach so that families can get support on just a few issues if that is what they need, or cover a comprehensive list of topics. It is important to underscore that mediators do not provide advice on what each spouse should do but rather help explore options, provide information and resources so that the parties themselves can make informed decisions. The families control the outcome, not the mediator.

For those of you going through a separation either now or in the past you may have shared the same sentiment that it felt like a bad dream at times, but were not as lucky as Homer to wake up to the status quo. Aside from 30 minutes of entertainment this episode highlights that separation is common and takes work, but doesn’t have to be all bad – especially if you seek out support during this transition.

Amy Robertson, Family Mediator
Amy Robertson

Guest blogger Amy Robertson is a Family Roster mediator and management consultant in Victoria, BC and has also been the Chairperson of a Federal Administrative Tribunal. Amy keeps an active mediation and consultation practice at victoriamediation.com.

Photo: Marge and Homer Simpson, The Simpsons Matt Groening Fox TV.

 

 

On Co-Mediation Part III: Two Heads (Mediators) are Better than One by Ronald J. Smith, Q.C.

Today’s guest blogger is Ronald J. Smith, Q.C., a Mediate BC Family Roster mediator and a Lead Mediator in Mediate BC’s Family Mediation Program. Ron keeps a busy family dispute resolution practice in the Okanagan, justfamilysolutions.ca.

This is the fourth post in our “On Co-Mediation” series. Read the other posts here:

Introduction | Part I | Part II | Part III | Part IV | Part V | Part VI | Part VII

Ronald J. Smith, QC
Ronald J. Smith, QC

The practice of mediation can be a lonely one.  We work with parties and their counsel, but our relationship is only for the resolution of the immediate issues.  We seldom receive feed-back from the parties or their counsel about our performance.  For most of us, the last time we were observed practicing our craft by an outside observer, was when we participated in role plays at courses we completed from time to time, or when we originally qualified for our mediation training requirements.

The Mediate BC mentoring program has provided me with a unique opportunity to work with two associate mediators, co-mediating LSS referred parties through the LSS Referral Program.

The associate mediators have both completed all the required course work for membership on the Mediate BC Family Roster, and the mentoring program provides them with the opportunity to complete the required number of mediations.

In total, my associates and I have completed six sessions of co-mediation.  In each case the presence of two mediators in the room seemed to bring down the emotional tone, and put the parties at ease more quickly.  The room feels more like a team effort, rather than parties versus the mediator.  My style in a mediation tends to be transparent, and the existence of a colleague facilitates that style, as we can dialogue openly about our concerns and curiosity as the process unfolds.

Family mediations come with their particular challenges.  The parties are often sensitive to their situation.  They will tell the mediator that they do not have much hope of settlement because of the history of the dispute to date.  Because of their sensitivities, it is imperative that the parties consent to the co-mediation, and the co-mediator.  I talk to the parties and give them the background of my co-mediator, and the reason for the mentoring relationship.  I make it very clear that the decision to allow the co-mediation is entirely theirs, and that nothing hinges on their refusal to consent.

With both associates, our different personalities aid the process.  Where I might push a party who is being positional, and wear my “big daddy” hat in doing so, my associate will quickly jump in with an empathetic statement that makes the confrontation go more smoothly , and helps the party to get in touch with his or her interests.

To the concern I have heard expressed that I might be qualifying my future competition, my personal response is that the real problem with the mediation process in smaller centers is not that there are too many mediators, but that there are too few.  Thirty years of mediation experience has taught me that the future of mediation depends on the public and the legal profession seeing mediation as an integral part of dispute resolution.  That requires a trained cohort of mediators.  The Mediate BC mentoring program is aimed at developing that cohort.

Co-mediation is not always practical, and could, if done all the time, possibly add more cost to the process.  But where it is available, it is a comfortable and enjoyable way to conduct a mediation.

This post also now appears on justfamilysolutions.ca.

Part IV of the “On Co-Mediation” series is written from the perspective of a Civil Roster mediator and experienced mediation mentor through multiple programs throughout Canada.

[Editor’s note: Many of the posts in this series refer to the personal experiences of the author. When considering applying to a Mediate BC Roster, please be sure to review the requirements at mediatebc.com.]