Marie Nickle
By Marie Nickle
Most family law court matters settle before trial and many of those matters should not have been brought to court in the first place. Court is expensive for litigants if lawyers are involved and more and more disputants are representing themselves. Unfortunately, lawyers have priced themselves out of the market. Parties simply cannot see the value that lawyers bring to them, given the high cost. We are a service industry and yet we fail to bring satisfactory service to the public, to the extent that parties choose to risk going at it alone before the Judge rather than pay the high price of representation. Some parties have never retained a lawyer due to cost, others have and are gravely disappointed at what they perceive to be lack of service – not explaining the situation properly, not returning phone calls, acting without instructions, and, of course, charging too much and not delivering. This is why, together with mediation becoming a quicker and cheaper way to resolution, lawyers need to reflect on the service, or lack thereof, they actually provide to their clients. Remember, you don’t have to be a lawyer to mediate an agreement between parties, even though mediation is a legal process. Mediation is largely an unregulated field, probably because parties are supposed to obtain independent legal advice from lawyers. Problems arise, however, if mediators underplay the importance of the independent legal advice. After all, there isn’t a law that says you have to hire a lawyer. I suggest that the solution to the problem lies with the lawyer giving better service to the client and adopting a problem solving approach from the outset. Negotiation is such a large part of what we do as lawyers in family law, whether in court or out, yet so many lawyers lack good interest-based negotiation skills. Acceptable negotiation tactics are along the lines of my way or the highway and this rarely works. It only usually serves to make the other side angry or angrier, pushing the likelihood of settlement further into the future. The client becomes unhappy because of the ongoing cost and complains about the legal system and the lawyer to anyone who will lend an ear. But what if the lawyer were to negotiate meaningfully for the client? There are a lot of unrepresented parties in court who could benefit from such a service. This would entail something short of full blown representation requiring full retainer. It would be a limited retainer arrangement. More affordable for the client and less taxing on the lawyer than full blown court record representation. Of course, the retainer agreement must be precise in conveying the service. Lawyers are expensive, but court is the most expensive process. It is not enough to say that alternate process options are expensive. The relevant cost of the alternate to a court process is the correct cost examination. This is all presuming lawyers are involved and we want lawyers involved for lots of good reasons – to protect the public being one very good reason. But the way to get the public interested is for lawyers to start providing a service the public wants, and needs. Average people just can’t spend upwards of $40,000 each on lawyers heading toward trial in a seemingly never ending court process. The public will look for other ways. They will go to mediators and they will represent themselves. Lets work on ways to bridge the gap between lawyers providing a good helpful service, and all those unrepresented parties.
Marie Nickle is a lawyer, mediator, arbitrator and trainer. She has a Masters Degree in Alternate Dispute Resolution from Osgoode Hall Law School. She trains lawyers in the Collaborative Law Process. Her office is on Lakshore Road in South Mississauga.