Family, Mediation

Solid negotiation skills crucial for family lawyers

A recent study revealing negotiation is the most common way that matters are resolved in the family justice system highlights the need for those in the field to focus on skill building in that area, says St. Catharines family lawyer and mediator Sharon Silbert.

The research was conducted through a web-based survey sent to members of the Ontario chapter of the Association of Family and Conciliation Courts, and was aimed at gathering information regarding the experiences of Ontario family justice professionals with various forms of family dispute resolution. The researchers behind the study, Rachel Birnbaum and Nicholas Bala, discussed their preliminary findings in a recent Lawyers Weekly article.

“Respondents report that a majority of their disputed child custody cases are settled by negotiation between lawyers, followed by resolution by an interim court order with no trial, followed by mediated settlement, and then by trial,” says the article, which goes on to specify that for most professionals, less than 10 percent of their cases actually result in trials.

Silbert, whose practice focuses on resolving family law issues with minimal court involvement, says that the results of the study lay the groundwork for a deeper conversation around the value of negotiation skills for family lawyers.

“Building solid negotiation skills isn’t often the focus in terms of legal education or continuing professional development sessions,” she says. “You can get a lot of training on substantive family law, or family court procedures, but it’s very easy for lawyers to overlook the negotiation skill-building side of things, despite the research showing that it’s really, really important. If we know most family law cases are being resolved by negotiation, doesn’t it make sense for lawyers to focus more of their efforts in that area so they can serve their clients more effectively and efficiently?”

The research project appears to have focused on parties who started in the court system but resolved their matter before reaching trial, but Silbert’s focus is to help people avoid the courts altogether.

“My goal is to help clients reach the same end result, but without the same level of time, expense and adversarialism that is associated with going through family court,” she says.

Despite her own focus on out-of-court resolutions, Silbert says the court system is still a necessary piece of the puzzle, including in some cases where the goal is a negotiated settlement rather than an adjudicated outcome.

“Sometimes it takes starting a court action to bring a party to the table in order for negotiations to take place,” she says “It takes two participants for negotiation to happen. If somebody isn't willing to engage in the process without being forced to do so, getting the court involved is the only way to go.”

A number of the report’s respondents commented on the importance of the attitudes of lawyers towards various forms of dispute resolution as a factor in whether a case goes to trial, says Lawyers Weekly.

Silbert says that statement rings true, and is consistent with what she’s learned through her work as a family mediator, which has provided her with a unique perspective on the lawyer-client relationship.

“Family mediation clients often talk with me about their relationships with their lawyers, and I always listen carefully to what they say. I have learned a lot about the things that lead to client satisfaction and dissatisfaction. It’s also helped me to better understand the kind of influence lawyers have on their clients’ thought process around decision-making for dispute resolution,” she says.

One respondent said while lawyers’ intentions are always to protect rights of clients, they may not always address the needs and stress associated when going through various processes, reports the legal publication.

Silbert says it’s a statement she absolutely agrees with.

“I think there’s a real tendency to focus on the aspects of a family law case that can be adjudicated and on trying to maximize outcomes for clients with respect to those factors,” she says. “Unfortunately this sometimes fails to take into consideration other costs, such as emotional costs or damage to relationships, which are also important. They may be more difficult to quantify, but they may still be crucial from the client’s perspective.”

Silbert suggests that these types of client concerns are often best addressed through consensual dispute resolution processes, supporting the assertion that lawyers would do well to emphasize negotiation skill building in their own legal education and professional focus.

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