By Douglas J. Manning, Partner, Certified Specialist in Family Law

There has been some press coverage over the past couple of months about Brad Pitt and Angelina Jolie’s marital breakup and their fight about the children.  However, the amount of coverage has been far less than in a lot of Hollywood divorce cases.

Why is this?

While there have been hints in the gossip media about differences in parenting styles and priorities and the possibility of infidelities (one or more),  statements coming from both parties suggest that they want to make the emotional health and wellbeing of their children the number one priority of the split up process.  They have decided to use an alternative to the public legal system to settle their differences.  Brad, Angelina and their lawyers decided to use a “private court” process so that they can keep control of the process and avoid the sensationalism that often accompanies these Hollywood breakups.

A private court is the same as using an arbitrator to assist disputing parties in resolving their differences.  The process is private in that there are no public court filings (except perhaps the documents that start the divorce and the documents that resolve the issues – but this is not necessary in all cases).

The parties get to choose their “judge” or arbitrator.  If the matter involves sensitive child development issues related to the children’s attachment to each parent or one or more children’s special developmental disabilities, then the parties can select a judge with considerable experience with these topics.  Conversely, if the separation involves complicated financial issues, then the parties and their lawyers can agree on a judge/arbitrator who is comfortable in dealing with these sorts of issues.

The “trial” can proceed in much the same way as a public trial does. The parties can call witnesses who will give evidence and be cross-examined by the lawyers.  Also, the parties can agree to retain the services of experts – such as child psychologists (if the issues involved complicated children’s issues) or certified business valuators (if the issues are financial).  But none of this becomes public and the parties sign a non-disclosure agreement.

Readers may be now thinking – but this “private” court process is just for the rich or famous.  Not true.  The private court or arbitration process can be used to avoid some of the costly and time consuming steps that are required in the public court process.  Also, using your own, private process means that you can schedule the steps in your case as quickly as is necessary to meet your needs for a quick, or not-so-quick, resolution.  You are not handcuffed by the public system that sets the calendar for when judges are available and when cases will be heard.

So before starting down the road of going to the public court system to resolve your family law issues, speak with your lawyer about the advantages and disadvantages of using arbitration or a “private” court process.

Thomas Dart, Partner, Family Law

We have all experienced the breakdown of a relationship whether it is our own or whether it is the relationship of people we know and love. The traditional way of handling the breakdown is to have each party go to a lawyer, obtain legal advice about their rights and obligations and then have the lawyers try to negotiate an agreement. If an agreement cannot be reached, one of the parties begins a court application and then “the fight” really begins – and the expenses rise. The already bad relationship only gets worse. Children are directly affected by the conflict. Everyone loses – even the lawyers because they can’t get paid for all the time required to solve the problems in the court system and the court system itself because it can’t manage all the cases that pour through the doors.

The parties to the court proceeding are really handing over the power of solving their problems to professionals: to their respective lawyers, and to the judge who ultimately must decide their future for them. Is there a way to help people solve their own problems and reduce the animosity and harm which the adversarial nature of the court proceedings create? Fortunately, yes there is.

A competent and certified family mediator who knows the law and, more importantly, the impact of separation on children can aid separating parties in many ways. The mediator can provide all the information the parties need to make informed decisions which will impact them for the rest of their lives. The mediator can assist them in opening up discussion around the problems they are facing so that they can seek and find mutually acceptable solutions. The mediator can also help by obtaining any necessary therapists, coaches, valuation experts and any other expert who might assist them in reaching an agreement.  If the mediator successfully assists the parties in reaching an agreement, the mediator will prepare a memorandum of the agreement. The mediator cannot draft the actual legal agreement which the parties must sign to complete the process. The mediator must refer them to independent legal counsel who will prepare their actual legal agreement for them. This is to make sure that the parties obtain appropriate legal advice before signing the agreement so that they can be assured that they have made the right decisions. This provides a safeguard for anything that might have been overlooked in the mediation. If the lawyers come up with a reason why the agreement reached in mediation should not be completed, the parties can then return to the mediator with their lawyers to work out another solution.

In other words, the parties themselves can take control and through the mediation process can learn all they need to know to make well-informed and good decisions which are mutually beneficial and protect the children from any conflict. In the mediation process, the parties do all the work under the direction of the mediator. With all the work completed under proper supervision, the lawyer’s job in drafting the agreement then becomes much easier and therefore much less expensive. Parties who can mediate a settlement pay much less then parties who turn over the decision-making power to others.

Mediation may not work if one of the parties suffers from a mental health problem or if there is serious domestic violence but it can work for the vast majority of people who separate. Anyone who wants to learn more about mediation and other ways of resolving problems arising from separation should visit the following websites: www.fdrio.ca or www.fmc.ca.

Barriston also offers mediation in the form of Barriston Resolution Services. Take a look at our website for more information.

 

Jodi Armstrong, Partner, Family Law

There are certainly some similarities between a mediation report and a separation agreement: both documents outline agreed upon terms and both, at least appear, to have an air of finality about them.  Why then, once parties have gone through the mediation process and have received a final report setting out their agreement, are they still being strongly advised to take the next step and enter into a separation agreement? 

The answer is simple: the mediation report is not a legally binding contract.

Many, but not all, mediators are also lawyers.  When a lawyer is acting as a family mediator, however, he or she does not provide legal advice to either party.  The lawyer/mediator can provide useful legal information but, while mediating a family dispute, he or she is acting as a neutral third party and is attempting to assist  separated spouses with reaching a meeting of the minds in relation to their various family law issues.  Once the parties have come to an agreement, the mediator will prepare a mediation report outlining the particulars of that agreement and will direct the parties to take the report to their respective lawyers for independent legal advice.

Once the mediation report is in the hands of the lawyers, the parties will have the opportunity to discuss the terms and to get advice with respect to whether the mediated agreement is consistent with their rights and obligations under the current law.  Assuming that, with that legal advice, the parties are still in agreement, the lawyer will draft a separation agreement with appropriate releases.   The separation agreement must be (1) in writing; (2) signed by the parties; and (3) witnessed – at which point, it is a legally binding contract.

Kim Kieller, partner Family Law

By now most of the public is aware that there are several ways to settle any dispute – whether it be a family breakdown, a corporate shareholder dispute or an employment contract disagreement. Historically, the parties would prepare their materials and let a third party – a judge – decide their issues and dictate a solution. Several different styles of litigation have developed. In the extreme, there is the “deny, deny, deny”, litigation method. This is practiced by the lawyer/client that will simply not agree to anything.  Sometimes this can actually be effective. However there is a serious cost to this type of a strategy,  both financial and emotional. The second form of litigation model has become much more acceptable in the last 20 years; being a negotiation model. For example, when I started practicing law, the idea of a settlement conference was a novel approach!  Now a settlement focus is a part of all litigation .

However, litigation is not the end-all and be-all for most parties. By litigating a matter, a third party who does not know you, your dispute, your personal needs, your ambitions and the background to the litigation decides all issues before him or her. It may take years to get the matter settled. it can be costly. It can be emotionally and psychologically draining. The efforts and stress from the litigation can also, in most cases, deter from productivity and positive returns as the process is  a divergence of  you and your firm’s efforts from moving forward to living in the present.

So, what options does one have?

Negotiation is always an option. However, when negotiation – where both parties and their counsel have their own agendas, fails, another option is mediation or mediation and arbitration. For the sake of this blog post, the do’s and don’ts of mediation are the focus. A subsequent blog will deal with the issue of arbitration.

Mediation is a process where a nonbiased independent individual facilitates the parties in order to come to an agreement as between themselves. The mediator does not offer solutions. The mediator does not make decisions. As a neutral facilitator, the mediator is trained to assist the parties in coming to a reasonable and fair agreement. The mediator in a complex case may bring in certain individuals including accountants, business valuators, psychologists, etc. The mediation is not a “quick and dirty” approach. The process can take a while. However, it is a process that can be utilized in an effective and efficient manner.

There are two types of mediation – open and closed – and depending on the circumstances the parties choose which format they wish to utilize. In a closed mediation session, everything is privileged. Nothing that is said, written or suggested in the mediation, unless it is finally determined in an independent contract, is binding on the parties. In a an open mediation session there can be a report completed in regard to all that is occurred and the information discussions are not privileged. The mediator may make recommendations. The terms of what can be released by the mediator is determined by the contract between the parties and the mediator, usually, with independent legal advice.

In short, it is important, if you choose mediation, to follow the following do’s and don’ts.

DO always obtain a well recognized, qualified and certified mediator. Anyone can hang up their shingle and indicate they are a “ mediator”. A qualified and certified mediator is known by their initials or by their certification from one of the three mediation services in Ontario ADRIO, OAFM, FMC.  It is imperative that the mediator you choose have at least one designation. To obtain the designation, the mediator must go through a rigorous internship. For example for the OAFM accreditation, one has to take 2 40 hour courses, a domestic violence course and have at least 100 hours of interning experience before they can even apply to the accreditation committee to be certified . In choosing a certified or accredited mediator, you can be confident that person will follow all of the rules and principles of mediation in order to provide an effective mediation – rather than a glorified pretrial or worse.

DO be prepared for the mediation. If it is of a financial nature, bring the financial documents with you. Attempt to have a synopsis of the financial issues determined ahead of time and exchange them with the other side. If you are not sure as to what is needed, ask for a premediation meeting where the mediator can discuss the issues with you, set an agenda and assist in determining what information you will require.

DO discuss, in advance, the attendance of counsel. In complex cases, the use of counsel may assist in resolving the outstanding issues; by way of drafting minutes of settlement, providing an analysis as to whether or not the agreement you are about to reach is reasonable in the circumstances. One factor that I note with clients is that they are prepared to settle for the here and now but not take into account the consequences of a long-term agreement. Your counsel can assist you to ensure that you are not settling for the short term but with unknown long-term consequences.

DO talk. The mediator is not going to talk. This is your mediation. You set the agenda. You discuss the issues. The mediator is responsible to  keep you on track and use various techniques to bring you back to the issues and assist the parties in resolving  outstanding matters.

DON’T expect the mediator to settle your issues for you. The mediator is not going to do so. The mediation is your mediation. The mediator will simply assist you in coming to a resolution.

DON’T expect the mediator to give you legal advice. The mediator may educate you but will not provide advice regarding the particular circumstances.

DON’T expect that the mediation report, once received , to be a final and binding agreement. In most cases, and the mediator can assist you in understanding if yours is one of these cases, the mediator may prepare a report which will be then taken to both lawyer; whether it’s a family lawyer, civil lawyer or otherwise, to come to a final resolution and a contract or agreement completed by counsel with independent legal advice.

DON’T expect the mediation to be completed quickly and in one session. Both parties have their point of view and no matter how much you feel that your position is correct, the other side will have their position as well. While some mediations may be completed in one session, in my experience this is the exception to the rule.

Mediation is a fair reasonable and considered way to manage disputes. It is something every person in a legal dispute ought to consider in order to save time expense and the emotional drain of a lawsuit.

Thomas Dart, Partner, Family Law.

Lawyers who are also mediators are almost schizophrenic. As advocates, they have to pretend that they are, in effect, at war with the other side, a war which must be conducted with “civility”, but war nonetheless. As mediators, they have to find peace.  So should family law be conducted as a ‘war’ or as a ‘peace keeping project’?  Unfortunately, there is no easy answer to that question as, very often, the answer depends on the personality and goals of the client.

In the ‘war game’, the lawyer must be the adversary who is charged with the responsibility of protecting his client’s interests and obtaining the best possible result.  The rules of the game are contained in regulations called The Family Law Rules, (no you are not allowed to kill your former spouse!), which must be learned and strategically applied to attain the best possible result for your client.  It is very much an adversarial contest, a sometimes very bitter contest because the lawyer is called upon to use every tactic in the rule book to his or her client’s advantage.  Clients who totally mistrust each other, are unwilling to play by the rules, who disrespect the law, who will do anything to hurt the other side love the adversarial game because they believe that they will somehow come out a ‘winner’ of the war game. Finally, they will receive what they perceive to be justice when the judge makes a decision, after an expensive trial, favouring them. Seldom, however, does the end result in satisfaction for either party. 

In the ‘war game’, Judges have to act only on ‘evidence’ about which there is fairly strict rules.  In the war game, the vigilant lawyer can prevent harmful evidence going in unless it complies with the Rules of Evidence. For example, you may well know that your spouse has hidden income, but if you don’t have evidence to prove it, you will probably lose that part of the war.  So in the war game, you have to spend lots of time and money trying to prove facts which both sides may well know are true. Nobody has to admit facts and, very often, people have very different perceptions about facts – we all know that two people can witness the same event and come away with two opposite versions of what really happened.

In the ‘war game’ the biggest losers are the children. In an adversarial system, harmful attacks are made by each parent against the other. Justice Harvey Brownstone’s book (http://www.amazon.ca/Tug-War-Verdict-Separation-Realities/dp/1550228706)  is a must read for those who want to play the ‘war game’.

Sadly, the common approach to family law generated by an adversarial system promotes the war game and destroys families emotionally, financially and spiritually. Equally sadly, it is a necessary evil for those who get filled with hatred (or often terror) when the separation takes place.  I would like to think that we can restrict the adversarial system to the ‘criminal element’ in the family law world – that is those who want to evade their responsibilities, those who want to steal from the other spouse, those who don’t care about harming their children – can we leave that system to them? Only a judge can hold them accountable because they don’t want to (or can’t) hold themselves accountable for the breakdown of their relationship and the decisions which must be made to move forward after separation.

For those good people who get caught up in the terrible tragedy of family breakdown and who do understand and have the maturity to accept the fact that they are accountable, the peace keeping method is far superior.  A good mediator, combined with good therapists, can assist people in understanding the law and the impact of the family breakdown on all members of the family. In a peaceful, although emotionally trying, manner, a divorcing couple can learn how not to be warring enemies of one another.  By focusing on what brings peace to the family so it can move forward with hope, a good mediator will ensure that both spouses have a clear knowledge of their legal rights and obligations, all information necessary to make an informed decision, that they are properly represented by legal counsel of their own when they reach an agreement in mediation, that their financial resources are distributed fairly and in proportion to their responsibilities and can assist them in finalizing with their lawyers a final agreement dealing with all matters arising as a result of their tragic breakup.  A good mediator will also be aware of all of the other the resources in your community which can assist you in learning how to parent your children following separation, how to manage your finances properly, how to deal with each other constructively, no matter how bitter you might be toward each other at first. 

Most importantly, a good mediator will try to understand each of your respective goals regarding the separation and will use that information to assist you in attaining an agreement which comes as close as possible to attaining those goals for each of you. Often your goals will not appear to mesh at all with your spouse’s goals but a good mediator can explore those areas in a skillful manner which may show both of you that there may well be common ground where you think there is none. A good mediator has the responsibility of trying to establish a win-win for both of you.  This is not always easy and may take some time and a lot of work – a mediator’s understanding and grasp of the underlying causes of fears or anxiety which are preventing agreement is often the first step toward reaching an agreement which both parties can acknowledge as a ‘good agreement’.

A mediator can’t take sides or give legal advice. A good mediator provides  information, acts as a coach for both parties during the negotiations, keeps everyone on track and lets both sides have equal input, knows when to call a break, knows when to let you handle things on your own and provides careful governance of the negotiations. When an agreement is reached, the mediator records the basics of the agreement in a written report to the parties which they can then take to their respective lawyers for finalizing by way of a comprehensive legal document called a “separation agreement”.  A good mediator can help with wording but cannot actually draft the separation agreement for you because drafting the agreement requires legal skill and you must have independent legal advice before you sign.

A good mediator will have ‘credentials’.  Right now, in Canada, there is no regulation of mediation services. Anyone can hang out a shingle and call themselves a ‘mediator’. But a good mediator is trained and will be certified or accredited by Family Mediation Canada, (www.fmc.ca) or by the ADR Institute (http://www.adrontario.ca/) or by the Ontario Association for Family Mediation (https://oafm.on.ca/). You can look up the name of a good mediator near you on these web sites.

So if you are caught up in the tragedy of a family breakdown, which path do you want to  follow – war or peace? The choice is really up to the two of you. As for me, I want to be nothing but a mediator – I don’t like my current schizophrenic personality J !!

This week, let me digress a bit from the family law field, although I think this topic is directly related to the issues we mediators face on a daily basis. If any of you have watched the Rick Mercer report on CBC television, you are undoubtedly a fan of his “weekly rant” in which he highlights the absurd aspects of the various programs of those in government. I certainly do not have his talent for comedy nor his linguistic skills but then this blog is not about comedy today.

For those mediators who daily deal with conflict resolution, it is a difficult task to bring parties to agreement given the emotional aspects of the family law conflict. This task is rendered all the more difficult when we take into account the culture of our current society which has basically allowed capitalism to run unchecked. No, I am not a Communist and, as a lawyer mediator, I certainly have every respect for capitalism – provided that it is tempered by appropriate regulation, which, by the way, it once was.  The subprime scandal in the US is a typical example of uncontrolled capitalism and, as can be seen, lack of control is extremely damaging to the economy which in turn is extremely damaging to the family unit, however that family is comprised. Maximizing corporate profit is now more important than keeping people working. People who lose their jobs as a result of this culture begin to lose their sense of self-esteem and self-worth. They become depressed and family relationships naturally begin to fail.

At the root of all this of course is greed.  There are those who seem to think that they should have the vast majority of the fruits of our society. These folks have always been around but for some reason we now seem to be willing to buy into this mentality. Why? And why am I talking about this now?

In my practice, more recently and more often than ever, I have come across a few microcosmic examples of this greed. I have seen perfectly profitable corporations retain outside managers and consultants whose sole purpose in life is to make work intolerable for any highly paid individuals. They are able to drive out good workers who earn high wages so that the company can replace those people with workers who earn half the amount. The company thereby substantially increases its already acceptable profit to greater heights so that its CEO and senior management can reap the rewards. The CEO of course has no long-term vision for the company because he or she is only in power for 3 to 5 years. They seem to think that they need to generate as much wealth for themselves (and the shareholders)  as they can in that short period of time and the best way to do that as to eliminate or significantly reduce wage costs as quickly as possible. It does not matter to them after they are gone from their post as CEO that the company can no longer function properly because its good workers have all retired or have been driven out of the company.

Our Canadian federal government, in its amendments to the employment insurance scheme, seems to completely endorse the corporate model outlined above. Workers are now told that if they do not accept lower paying jobs, they will not qualify for ongoing employment insurance payments. In other words, this government fully endorses the capitalistic approach of lowering wages so that corporate profits can be increased. Yet we know from other sources like the Toronto Star that the employment insurance premiums that are charged to workers and to employers reputedly generate more income for the government than it pays out in employment insurance payments to unemployed workers. In other words, there is enough money in the scheme to fund its obligations to unemployed workers. So the reason for this scheme can’t be that there is no money to fund the operation.  Therefore, the logical conclusion is that the Government philosophically supports driving Canadian workers’ wages down. The NDP party is hammering this home daily in the press. (No I am not an NDP supporter. In fact I am totally apolitical these days. )

How does this all affect family law?

Well the answer surely should be obvious. Our Canadian families are being placed under extreme stress through job loss or wage reduction or simply unwarranted pressure at work from bosses like the manager described above. This culture of greed is tearing families apart. When the spouses in such families separate, we often see both spouses unemployed for the first time in their lives. They often have children and are dividing up debt more than they are dividing up assets. The future looks bleak for them. More importantly to them the future is one of despair for their children. Their limited entitlement to employment insurance only increases this despair. Our finance minister tells them that “no job is a bad job”.  This brings to mind the famous statement purported to have been made by Marie Antoinette the French Empress who on the verge of the French Revolution said “Let them eat cake”, referring to the poor who were in the same kind of desperation then as our poor are now.  The fact that no job is a bad job is little solace to the family who is used to a middle-class income which has evaporated. They suddenly have to accept wages which require them to work two or three jobs, if they can find them, just to keep the payments on their homes. They hardly have time to devote to the needs of their children or their marital relationships.  And we wonder why the divorce rate is so high in our country.

Perhaps, (and it is just my opinion), we need a major cultural shift. We need a leadership contingent who believes that the culture of greed is wrong for our society and that there is a better way.  Perhaps we can look to models of government who value the sanctity of the individual more than the corporation. There are countries in the world that provide good models – Norway, Sweden quickly spring to mind but there are others. Why don’t we look to countries which promote values different than our currently misdirected sense that the maximization of corporate net profits is the only way to save ourselves?

 I fully acknowledge that not all relationships can succeed and that economic difficulties are not the sole source of family conflict. There are many other reasons for the failure of the family unit. But the culture of greed is pervasive and it affects both rich and poor families. This culture facilitates selfishness and in fact extols as a virtue the focus on self, “what’s in it for me”?  Marriage and family relationships are not about that – they are about love and often self-sacrifice – virtues which are not promoted in the current environment.  If our culture did shift and family relationships then lasted forever, I would be out of a job. But you know what? I would be happy. 

Thanks for letting me rant – Mr. Mercer please accept my apologies.

By Douglas J. Manning, Partner, Certified Specialist in Family Law

I have provided services as a mediator and arbitrator for several years.  In addition, I have conferred with other mediators in the field.  Given our experiences here are some suggestions to make the best use of family mediation. 

  1. Be prepared – Review important issues and facts before you arrive.  Be sure that the other party (or his or her lawyer) has all the information you will be relying on in advance of the mediation.  Be sure you have all the facts and information you need to make a decision.  Mediation is most effective if everyone knows the facts in advance and has a chance to think about those facts before meeting.
  2. Consider your options – Think about a range of settlements that will meet your needs.  Think about the range of options the other party might be prepared to accept or offer.  Mediation offers the opportunity to resolve disputes in more creative and flexible ways than can a judge.  Do not set a bottom line.  You are attending mediation so that the other party will re-evaluate their case and seek settlement options.  You should be prepared to do the same.
  3. Know your legal costs – Know what further legal costs may be incurred by you if you do not resolve the matter at mediation.  The cost of settling early may be an important factor as to whether or not you wish to resolve the matter by way of mediation.  Further negotiations between counsel or further litigation can be very costly.
  4. Know your lawyer’s role – In mediation, the mediator’s job is very different than a judge in a courtroom. What you want is to do is to convince the other party to accept a settlement you can accept.  Your lawyer and the mediator will want to keep the lines of communication open.  Acknowledging the other party’s strong points and holding back on statements that might offend the other party are good tactics for you and for your lawyer.
  5. Know your case – Be sure that you fully understand what the possible range of outcomes are if you were to choose to pursue litigation or other options than mediation.  Ask your mediator to give a realistic assessment of your risks and possible outcomes (good and bad) should you fail to settle your matter.
  6. Participate – A significant part of the mediation is discussion between the parties while being assisted by the mediator.  Lawyers have an important role to play, but often it is the clients’ participation that makes the medication successful.
  7. Focus – Be clear about your concerns, your needs, and your objectives.  Be prepared to discuss these.  This type of information assists the other party to formulate settlement offers that satisfy your objectives.
  8. Trust the mediation process and the mediator – The process may seem foreign to you.  It might be different than other negotiations you have been part of.  Remember, the mediation process is a proven way to resolve disputes.
  9. Listen carefully and respectfully to the other party  –  Think about how you listen.  Let your body language tell the other person you are prepared to listen and prepared to discuss.  Speak carefully and respectfully to the other party.
  10. Be assertive in stating your concerns and viewpoints – Avoid language that will antagonize the other party but state your position clearly and succinctly.  Do not threaten, accuse or give ultimatums. You will more likely achieve success if you are hard on the problem but easy on the person.  Try to communicate in a neutral, non-judgmental way.
  11. Be willing to persuade the other party about the rationality of your position.  Look for outside information that the other side will respect, that supports your viewpoint.  Your lawyer and the mediator will be able to supply information as to how a Court may decide your matter based on how it has decided similar matters.
  12. Be open to persuasion – Be open to creative solutions.  Part of what makes mediation successful is that people find solutions that no one has thought of before. In order to do this, you should come to mediation with an “open mind”.

Ontario is now committed to reforming the family court system in Ontario. To make that happen the government intends to change the attitude of all participants. Those of us who deal with family breakdowns have long understood that the adversarial system is really not the best system to deal with family breakdown. That system often causes more harm by giving the conflict legitimacy and creating the sense that there are winners and losers when in fact there are no winners when the family unit ends.

Last year, the Attorney General for Ontario, Chris Bentley, announced a new process for resolving family law disputes. The process would be based on four ‘pillars’:

 1.    Providing early information for separating spouses and children;

 2.    Assessing parties and directing them to appropriate and proportional services using a triage approach;

 3.    Facilitating greater access to legal information, advice and alternative dispute resolution processes; and

 4.    Developing a streamlined and focused family court process.

Recently, the Attorney General announced another step toward attaining that goal. In relation to step 1, he announced that he would make province wide the Mandatory Information Program (MIP) that has been used with such success in Toronto. Before any separated couple can go to court, each party will have to attend an MIP. The MIP will focus on the systems available to resolve family law disputes. It will educate the litigating parties about the damage that they can do to each other by approaching their dispute with a ‘win lose’ mindset. The MIP is starting in April 2011 and will expand over the summer to all Ontario courts so that by the end of 2011, nobody will be able to go to family court until they have attended an MIP. 

There is no doubt that when a marriage breaks down, one or both parties have very strong emotions – intense hurt, intense anger, which can translate quickly into a strong desire for revenge. No doubt fear is a strong influence on these emotions. How can I manage financially? What did I do to cause this? How could I be so wrong about my spouse? What will happen to our children? These are but a few of the intense questions that influence the actions of separated partners, partners who fully intended to live out their marriage vows and don’t understand fully where things went wrong.

People don’t know how to function when their world begins to fall apart around them. This is completely understandable. Often they believe that the only hope is to hire a strong ‘attack dog’ type lawyer to protect them and get the most from their partner. Some lawyers actually believe they do their clients a great service by being that ‘attack dog’. However, the good family lawyer will try his or her best to fully inform their client about the systems available including mediation, collaborative law, arbitration, and court. The good lawyer will tell their client how much each of these systems is likely to cost. More importantly, they will tell their client what it is like to go through these various systems of dispute resolution. When the client is fully informed, they often understand that the last place they want to be is in court.

It is crucial for people going through separation to understand what the various dispute resolution services are able to do for them to assist them in moving on to a place where they can carry on, after divorce. Often that service is not court based.

Sadly, not all lawyers fully inform their clients at the outset of the case. Sometimes, as well, the client, who often is in a complete state of emotional shock, is not able to hear what the good lawyer is telling them about the benefits of mediation and arbitration. All they can think of is that they need a Judge to tell the spouse who has hurt them so badly that he or she is a very bad person and should be punished. They don’t, therefore, give proper informed instruction to their lawyer.

The MIP should be designed to assist the people who have been seriously harmed by their separation. It should alert them to their need for counselling and professional assistance from mental health professionals. It should explain the different ways of approaching the resolution of the parenting and financial issues that arise when the family breaks down. It should focus on the need to maintain a relationship between parents for the sake of their children who are most affected by their separation. It should tell them that a long adversarial court battle is the last thing that either of them need – that the costs are too great and can be ruinous, not only financially, but emotionally and psychologically to both parties and their children.  It should give them education about the best method of resolving their particular dispute.

So, thanks to this Government initiative,  the movement for change is finally on – a movement that was spawned by many professionals who have dedicated themselves for so many years to assisting families going through the most common tragedy of our modern lives – separation and divorce. Professionals in this area have known for many many years that the adversarial system can cause more harm and that it really should be the rare case where separated spouses need a third party – a Judge to decide their fate when their marriage or partnership ends.

For those who want to read about the work these professionals have done, download this PDF.

Family law reform is underway in Ontario. Reform of “the way we do things” that is.

Normally, when parties separate, they turn to the court system if they are unable to negotiate an agreement themselves with respect to the many issues which they may face. Often, they consult a lawyer whose main emphasis is to bring the matter to court or threaten court if negotiations are not going well. For many years, most family law professionals have understood that the adversarial system represented by the Court is not the best system to deal with the sensitive, emotionally charged issues surrounding the trauma of separation. Even when people go to court they most often do not end up actually having a trial, as more than 90% of cases settle before trial. We often wonder why does it take people that long to come to an agreement? To that question there is no easy answer, but we certainly know that when they get that far along in the process, the parties have spent tens of thousands of dollars, dollars which they cannot really afford.

Several years ago, Alf Mamo, a prominent lawyer from London, Ontario, was commissioned by the Provincial Government to study the family court system and to make recommendations specifically around Family Court. Alf’s report was submitted to the Government and then nothing happened.

Last November, the Ontario Bar Association’s Family Law Section, the ADR Institute of Ontario, and the Ontario Association for Family Mediation along with several other professional groups including the Collaborative Lawyers Association for Ontario, put together a program in an effort to flesh out and examine practical ways of dealing with the issues set out in the “Mamo Report” as it has come to be known. I was honoured to be one of the co-chairs of the program which was held during November 2009. We gathered together about 120 people for two days of workshops and asked the groups to examine how the system could be improved and to make recommendations that would be embodied in a report to the Provincial Government. The attendees were from a variety of different professional groups – lawyers, mental health professionals, members of the judiciary, members of the public who had experienced first-hand the workings of the existing system, professionals within the various ministries of government who deal with family court issues on a regular basis, representatives of different cultural and academic groups, law professors, and anyone who had an interest in process reform.

The results were rather surprising in several senses: First almost all groups agreed that for the vast majority of cases involving family breakdown, the adversarial system was not the best system. Secondly, the provincial government under the Attorney General’s leadership, took a very active interest in the process and promised to implement the recommendations if that could be done within the confines of provincial budgets. Third, although not very surprising, the recommendations which came out of the workshops were excellent. What was surprising is how well they were received. Now the provincial government is trying to implement family law process reform across the province and many of the recommendations are being seriously considered.

What does all this have to do with mediation and arbitration? Well, the answer is fairly simple: Almost all groups recognize the advantages of mediation. If done properly, mediation can protect the parties’ interests while at the same time saving them tremendous expense both in terms of money and in terms of emotional trauma. Mediation affords people the opportunity of dealing with their emotions while at the same time rationally handling the financial and child related issues involved in every separation.

As importantly, other approaches to dispute resolution such as collaborative law are being recognized as excellent methods of achieving agreement through empowerment.

The provincial government is now dedicated to providing separating couples with information and advice on how best to handle their specific issues – information leading to a better method. Providing people with information and with knowledge is the key to breaking down the automatic adversarial system.

While there will always be cases and couples who need to go to court to have their issues resolved, the vast majority of couples who do turn to court and don’t need to may now be given that information and may now begin to approach their problems in a much less adversarial manner, which can only bode well for the children who also must live through the breakdown of their families.

To learn more about how mediation and other methods of resolving the issues surrounding your separation can help lessen the financial and emotional impact upon you, please contact our office and we will be pleased to provide all the information you need.