A Survey of Beliefs and Priorities About Access to Justice of Family Law: The Search for A Multidisciplinary Perspective*

• Author: Peter Salem,Michael Saini
• DOI: http://doi.org/10.1111/fcre.12267
• Published date: 01 January 2017
• Date: 01 January 2017

A SURVEY OF BELIEFS AND PRIORITIES ABOUT ACCESS TO

JUSTICE OF FAMILY LAW: THE SEARCH FOR A

MULTIDISCIPLINARY PERSPECTIVE*

Peter Salem

†

and Michael Saini

‡

Within the last decade, the term “access to justice” has grown in popularity among legal commentators, scholars, family justice

reformers, government policy makers, and the media. But with all of this new attention, there remains no common understand-

ing or definition of access to justice and its potential implications for children and families in domestic relation courts. The pur-

pose of this cross-sectional online survey was to explore the meaning of access to justice according to legal, mental health, and

dispute resolution professionals in various countries. The sample included 442 respondents (e.g., judges, lawyers, custody eval-

uators, mediators, family court services, court administrators, parent educators, etc.) from seven countries. Of the total respond-

ents, 398 participants completed the survey (response rate of ninety percent). The majority of participants defined access to

justice as the ability of disputants to seek and obtain a remedy through formal (e.g., the courts) or informal (e.g., mediation)

institutions and services for resolving disputes. Noteworthy differences were reported, however, between the views of legal and men-

tal health professionals, where the latter most likely viewed access to justice as a legal issue, while the former focused on alternative

approaches outside of the legal system to resolve family disputes. Implications for family court reforms are discussed.

Key Points for the Family Court Community:

Although there is much agreement among professionals in defining access to justice and prioritizing changes to the

system, there are some important differences about the values and weight given to the various approaches.

Awareness, understanding, and respect for the various perspectives about how best to meet the needs of families are

important steps toward meaningful interdisciplinary dialogue. With effective interdisciplinary dialogue, these various

perspectives may work in concert rather than compete for the limited resources available to assist families involved in

family law matters.

Long-term outcomes should ultimately measure whether services reduce litigation and court costs for families. Longi-

tudinal studies are needed to track families as they progress through the various legal and community services to identi-

fy the services that best meet their needs and that are the most effective in resolving the issues that first brought them

to the attention of the courts.

Keywords: Access to Justice; Child Custody; Courts; Divorce; and Multidisciplinary; Survey.

I. INTRODUCTION

“Access to Justice” is one of the most pressing issues confronting today’s legal system. Over the

last decade, countless task forces, initiatives, and commissions have taken on the issue, resulting in

myriad government reports, legal commentaries, research studies, and media reports.

1

Of particular

concern are the unmet legal needs of children and families in the family court system,

2

and with

good reason. Free legal representation in family law matters is generally not available to lower

income people in the United States, with the exception, in some areas, of matters involving intimate

partner violence.

3

There has been also been a decline in recent years in accessible and responsive

court services that assist families in resolving disputes.

4

Widespread budget cuts have severely limit-

ed the availability of court staff to work with families in conflict.

5

Due to the growing number of

self-represented litigants,

6

the increased procedural requirements by some courts, and an increase in

the volume and complexity of matters before the courts, Gorham-Oscilowski notes that public

Correspondence: psalem@afccnet.org; michael.saini@utoronto.ca

Reprinted with permission of the Cardozo Journal of Conflict Resolution, originally published at 17.3 CARDOZO J.

CONFLICT RESOL. available at http://cardozojcr.com/volume-17-3.

FAMILY COURT REVIEW, Vol. 55 No. 1, January 2017 120–138

V

C2017 Association of Family and Conciliation Courts

funding for family court services does not meet the needs of all children and their families within the

court system.

7

This state of affairs has created a stark dichotomy in our family courts between the wealthy and

the poor. There are litigants with abundant resources who engage interdisciplinary teams of profes-

sionals to help them navigate the system. Some use a collaborative approach, engaging two lawyers

(one on each side) along with additional mental health coaches, child specialists and financial spe-

cialists, as needed. Others, in a more adversarial context, may hire multiple mental health and finan-

cial consultants to help them litigate their case. In contrast, many more parents lack the financial

means to obtain even the most basic services necessary to address critical legal, mental health and

dispute resolution issues impacting their family.

Barriers to justice have resulted in the widespread perception that interaction with family courts is

largely a frustrating, time-consuming, and expensive experience.

8

Significant delays and backlogs

within the family court system inhibit a litigant’s ability to access services in a timely and cost-

efficient manner,

9

and this situation may be exacerbated for those without legal representation.

Indeed, family court professionals who responded to this survey indicated that even though they per-

ceived improved access to the court in recent years, they believed that public trust and confidence in

the courts have worsened during the same time.

There is widespread agreement on the need to create greater and more effective access to the fami-

ly court system, but a lack of consensus about the potential solutions with many unanswered ques-

tions. What are the most desirable outcomes in a family law matter? Will legal representation for

more clients provide the path to these outcomes? Do we ask too much of self-represented litigants?

Can case management initiatives or dispute resolution programs solve the problem? How can effi-

ciencies be maximized while maintaining due process and protecting our most vulnerable citizens?

Where do we place our priorities for resources given the paucity of funding? Due to the inherently

interdisciplinary nature of family law and the various viewpoints about how best to solve the prob-

lems of access, it is critical for the field to grapple with these questions and to develop a common

framework for addressing access to justice.

A. MULTIFARIOUS DEFINITIONS OF ACCESS TO JUSTICE

The concept of access to justice emerged in the late 1970s

10

and initially focused on legal aid

funding issues.

11

There has been increased attention to non-legal approaches (e.g., courtside services,

parent education, mediation, parenting coordination) in the past decade, but there remains a lack of

consensus among legal and non-legal stakeholders about the reasons for the current barriers to

access, and how best to approach unmet needs of litigants in the courts.

12

“To take only the most

obvious example, the organized bar has a much stronger economic interest in promoting lawyers’

services than in promoting research and policies that support greater reliance on qualified non-

lawyers and procedural simplification.”

13

That said, there seems little question that lack of legal rep-

resentation is the most pervasive barrier, particularly for those without substantial financial resources.

According to Greacen, “[M]ost SRLs (self-represented litigants) represent themselves because they

have no realistic alternative—free legal services are not available to them if they are poor; private

representation is not affordable if they are of modest means.”

14

The ambiguity surrounding the term access to justice creates challenges in developing workable

solutions to meet the needs of litigants.

15

Mixed perceptions remain about the responsibility of vari-

ous stakeholders in administering access to justice; whether access to justice equals access to a law-

yer,

16

whether the concept is limited to fair legal processes; and what role, if any, non-legal

professionals should play. Furthermore, even if it were possible to provide legal representation to

everyone, it is not clear that a more effective system would result. Therefore, instead of a common

road map for addressing unmet needs of families in the justice system, access to justice has become a

blanket term used to describe a wide range of approaches that are generally aimed at legal reform.

Some approaches focus narrowly on better equipping litigants with legal representation, information,

Salem and Saini/ACCESS TO JUSTICE 121