Most cases settle before trial and most settle later rather than earlier in the court process. The real issue is not court vs. an adr process, but rather trial vs. an adr process.
Court is absolutely necessary given that it is the only non-consensual process available to a spouse having difficulty bringing their ex-partner to the negotiation table. The important question for parties involved in a court process is “at what stage do we settle to save legal fees”. Financial disclosure is often known at early stages (thanks to the Court rules and directives) and so why isn’t settlement taking place earlier than later? The Case and Settlement Conference system is theoretically sound. In practice however it doesn’t always work and there are many reasons for this, which is another topic. If not working, meaning that cases are not settling early enough in the court process, parties should be given adr options by their lawyers for expediency and cost saving reasons. Lawyer assisted mediation is my favourite, as it includes the parties’ legal advice built into the process, but this aside, Mediation (including court connected mediation), Arbitration, Mediation-Arbitration, Parenting Coordination, and so on are processes that clients will value as they can be designed to suit their particular needs at early stages, at a relatively lower cost. A lawyer’s role in providing legal advice to a client does not change in these processes. The pending changes to the federal Divorce Act steps up the requirement for lawyers to steer clients toward ADR processes and this is the reality of the changing tide of family law.
