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 !!