7.9“The principal institution of the law is not trial, it is settlement out of court”.808 In the United States District Courts in 1980 only 6.5% of cases reached trial, 93.5% terminated without trial, mostly by negotiated settlement agreements.809
“Because we know that roughly 95 percent of all civil litigation settles, the smart client and competent attorney must focus on how early in the litigation process a fair settlement can be reached in these cases.”810
7.10Deadline pressures were perceived differently in certain specialised areas of law. 29% of the commercial disputes were settled without filing proceedings, while 13.8% of divorce cases were so settled. However:
“it is trial [that] provides the leverage or threat that pushes opposing parties into settlement discussions and agreements.”811
Counselling, therapy and mediation
7.11It is useful to distinguish the different roles of therapists, mediators and counsellors. The public, and indeed lawyers, often confuse the different roles and services. One common error is to assume that counselling is only relevant when a party wishes to reconcile. Another common error is to think that a mediator acts as a counsellor. Basic principles of mediation, such as empowerment, consideration of the best interests of all family members, co-operative problem solving, and equitable distribution of assets, are compatible with the theory and practice of marital and family systems therapy.812 Client responsibility, prevention of emotional damage and fair play are some of the values of therapists. The emphasis on communication skills is common to both counselling and mediation.
7.12However, family mediation must be distinguished from counselling or therapy. Robinson noted:
“In counselling and psychotherapy the orientation is often towards understanding the past as a way of managing the present. In family therapy the focus is usually on the present as a way of managing the future differently. In mediation the orientation is distinctly future- oriented.”813
7.13Mediation has different goals to therapy. The goal of therapy, including divorce counselling, is: “to help the individuals resolve emotional problems so as to become more comfortable and functional in their lives”.814 The focus of mediation is on decision making that achieves the optimum result for both parties. The process is also different. The mediator assesses the process to formulate strategies to facilitate decision making; “the therapist makes a more extensive
808 Ross, Settled out of court (1980, 2nd ed), at 3.
809 Williams, supra, at 1.
810 Wulff, “A Mediation Primer”, in Donovan, Leisure, Newton & Irvine, ADR Practice Book (1990).
811 Williams, supra at 1-2.
812 Kaslow, “The psychological dimension of divorce mediation” in Folberg & Milne, Divorce Mediation - Theory and Practice (1988) at 87.
813 Robinson, Family Transformation through Divorce and Remarriage (1991) at 189.
814 Brown, “Divorce mediation in a mental health setting” in Folberg and Milne, supra at 131.