The astonishing success rate of mediation in resolving family law disputes

By John-Paul Boyd

In my last post, I described the results of a national survey of family law lawyers on how they resolve their cases conducted by the Canadian Research Institute for Law and the Family and two noted academics. In a nutshell, lawyers reported that they primarily resolved their cases through negotiation, followed by judicial conferences and mediation, and that the number of cases resolved through arbitration and trial is a fraction of those resolved by non-adversarial means:

In the same survey, we also asked lawyers about how many of the cases they took to mediation resulted in a settlement of all of the issues, a settlement of some of the issues or a settlement of none of the issues. This is what the numbers told us:

These numbers may not look too terribly impressive at first, but they do when you aggregate the rate of full and partial settlement. By region, lawyers said that the proportion of the family law cases they took to mediation that resulted in a full settlement was as follows:

• North (Northwest Territories, Yukon): 38.0%
• British Columbia: 56.2%
• Prairies (Alberta, Manitoba, Saskatchewan): 50.2%
• Ontario: 57.5%
• Quebec: 47.5%
• Maritimes (New Brunswick, Newfoundland and Labrador, Nova Scotia): 41.1%

(Frankly, a 50% rate of full settlement is still pretty impressive, considering the amount of money and court resources saved by resolving things short of trial.)

The proportion of cases resulting in a partial settlement was roughly the same, with more cases resulting in a partial settlement than a full settlement in the north, the prairies and Ontario, and less cases resulting in a partial settlement than a full settlement in British Columbia, Quebec and the maritimes:

• North: 54%
• British Columbia: 49.8%
• Prairies: 53.4%
• Ontario: 61.1%
• Quebec: 29%
• Maritimes: 40.7%

These numbers are based multiple response data, by the way, and do not sum to 100. However, adding all of the responses together, the proportion of cases resulting in a full settlement or a partial settlement is as follows, and these numbers are astonishing:

• North: 90% of cases taken to mediation result in a full or partial settlement
• British Columbia: 89% of cases
• Prairies: 87% of cases
• Ontario: 87% of cases
• Quebec: 73% of cases
• Maritimes: 80% of cases

Quebec is the outlier here, with 27% of cases taken to mediation resulting in no settlement, but in the territories and other provinces fewer than 20% of cases result in no settlement. The north and British Columbia stand out with the lowest rates of complete failure at 10 and 11% respectively.

It is important to remember that these numbers reflect only those cases counsel took to mediation, and not every case is suitable for mediation. In fact, according to our survey lawyers in British Columbia and Ontario took about a quarter of their files to mediation compared to lawyers in the north and the maritimes who took only a tenth of their files to mediation. However, these numbers do suggest that when mediation is attempted, it is fully or partially successful four times out of five.

The success of mediation as a dispute resolution mechanism is heartening — the resolution of family law disputes through the courts has always struck me as bordering upon the bizarre — however mediation generally comes at a cost, whereas litigating in the provincial court is usually free. Hence the extraordinary participation rates of litigants without counsel in our provincial courts.

This situation strikes me as an intrinsically wrong-headed choice of priorities in the allocation of public dollars; I fail to understand why we continue to direct 95% of our public funding toward the dispute resolution mechanism that is the most destructive and least efficient, and I wonder if it might not be best if legal aid programs channeled their money into providing people with mediators to mediate rather than lawyers to litigate. Even if only 10% of family law disputes resulted in settlement, that would represent significant savings to the justice system in terms of the costs of legal aid counsel, court administration time and materiel, sheriff’s time and judicial resources, never mind the long-term benefits to the parties themselves and to their children.

A note about the data

The greatest number of responses to this question were received from Alberta (about 30 on average), British Columbia (about 34) and Ontario (about 13); all other provinces and territories yielded 10 or fewer responses. As a result, I have lumped the data together by region in an effort to produce more meaningful numbers, giving responses as follows:

• North: 5 respondents
• British Columbia: range of 32 to 53 respondents
• Prairies: range of 34 to 42
• Ontario: range of 10 to 14
• Quebec: range of 5 to 6
• Maritimes: range of 13 to 15

The survey received no responses from judges and lawyers practicing in Nunavut or Prince Edward Island.

John-Paul Boyd is the executive director of the Canadian Research Institute for Law and the Family.

This piece originally appeared on Access to Justice in Canada Blog/Forum on Oct. 27, 2014.