Thu 27 Oct 2016

Supporting Families Through Change: Unbundled Legal Services Project Part 6

Posted by Guest.Author

In this final post in this series, we explore the survey responses about unbundling from family mediators.

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. 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:

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.

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.”

Posted by Kari Boyle, Unbundled Legal Services Project Manager.

Photo by Naassom Azevedo on Unsplash