It’s all about facts versus feelings. Conflict within close relationships, especially in the family setting, usually arises from dashed hopes and expectations, or feelings of betrayal and loss of trust. We base our hopes and plans for the future on our relationships and family structures and we count on them to give meaning and direction for our lives. As humans, we have a large emotional investment in these relationships. When such relationships break down for any reason, anxiety and fear about the future is an almost universal experience.
Anger and hostility is a common reaction to such feelings of betrayal, loss of trust and fears about our future. This can make it exceedingly difficult for people caught up in such disputes to think clearly and engage in good decision-making. People caught up in such situations frequently make decisions (and give their lawyers instructions) while in a state of anger or fear, or in reaction to perceived provocations from the other person(s) in your conflict. When reacting to such feelings, people tend not to appreciate what is actually in their best interest or in the best interest of their children.
The court system, however, doesn’t process cases or make decisions based on feelings. In the area of Family Law in particular, legislative provisions in the Divorce Act, Canada and in the Family Law Act of Ontario, as well as a long body of case law, strips feelings out of the litigation process. Overworked judges haven’t got time nor the inclination to determine whose “fault” it was that a relationship broke down.
There is no connection between how somebody behaved during the relationship and what the financial outcomes will be. It is a “no-fault” system, which is often not consistent with how people actually feel about the breakdown of important family relationships.
Similarly, in Estate disputes, while money is usually the major surface issue, there are invariably all sorts of feelings about the family structure and family dynamics which led to a dispute about the money in the first place. People often bring years of family history, perceptions about one another, old slights and hurt feelings, and other personal dysfunction to such estate disputes.
Those underlying feelings can drive a dispute far longer than the amount of money at stake will possibly justify. As people get entrenched in their positions and spend more and more money on their lawyers to support their positions, it becomes increasingly difficult to consider compromising. Legal costs mount up exponentially because the intense feelings involved prevent people from making wise financial decisions.
In the court system, judges have little time or patience for how people feel about the Estate dispute or who caused it. The focus is strictly on formal rules and obligations and analysing whether a particular party has met the legal test or standard that applies to them. When the answers to such questions are not entirely clear, and there are arguments to be made on both sides, that can lead to an uncertain outcome. But the costs of having a trial to decide who is correct (often involve several lawyers in an Estate matter) and forcing a judge to choose between competing positions, can be horrendous. A large part of the estate can end up going to legal expenses.
Mediation, by contrast, gives people an opportunity to express and explore their feelings. Feelings may not make any practical difference in the final outcome, but the parties can have an opportunity to talk with their mediator about how they each feel regarding the situation, and that sharing of information can help “lower the temperature” and allow them to proceed with a constructive discussion about how to move forward with their lives.
Mediation is not counseling or therapy, and it is not aimed at causing people to reconcile, but it also doesn’t ignore how people feel about what has happened and allows them to explore constructive ways in which those feelings can be expressed and acknowledged.
It is typical for any proceeding that has been in the court system for a while to run up tens of thousands of dollars in legal cost, between both parties. When lawyers must charge several hundred dollars per hour for their time, and each court appearance requires many hours of document preparation and honing their arguments, plus the time actually spent at the court house, each step of the proceeding can easily cost each party $5,000 to $10,000 and there are several steps before you actually get to a trial.
Then there are the costs of hiring and paying expert witnesses for things such as valuation and accounting evidence (usually a few thousand dollars at least), plus $5,000 to $10,000 for each day of a trial (including the preparation time) and the final submissions to the trial judge, and the follow up steps after the judge makes his/her decision. It’s no wonder that people can find themselves spending $30,000 to $50,000 just getting to a trial, plus the costs of conducting the trial itself. Ordinary people simply cannot afford this luxury.
The key take-away from the above list should be that parties in a dispute with each other, who use their own private dispute resolution process, can maintain a much greater level of control of their process, and keep their costs lower, than they will using the courts.
Mediation and Arbitration are both consensual processes, which are an alternative to the traditional court system resolving disputes. Nobody can be forced to participate in mediation of their dispute (aside from court rules in a few jurisdictions of Ontario). All parties must be persuaded of the advantages to resolving their issues in this private manner, outside of the court process.
A person can also not be forced to arbitrate a dispute unless they have already signed a Mediation-Arbitration contract and the mediation phase has ended without a settlement. In that limited situation, because they are already contractually bound to arbitrate if the mediation was unsuccessful, they can be forced to arbitrate.
Sometimes the lawyers for parties in a dispute will persuade their respective clients to pursue this alternative method of dispute resolution. In that case, the lawyers will contact the mediator/arbitrator to initiate the process, and will discuss whether they want mediation only, arbitration only or both (Med-Arb).
At other times, parties themselves will have heard horror stories about the court process, and want to pursue mediation before getting lawyers involved. In that case, one or both will contact the mediator directly, usually after first discussing with each other and agreeing to do so. If you are in that situation, and reading this, feel free to pick up the phone and call my office to speak with me or my clerk, or send us an email;
Ted Dueck 519-884-2620 ext. 224 tedd@dsjnlaw.com
Heather Grant 519-884-2620 ext 223 heatherg@dsjnlaw.com
When mediating separation and divorce matters for clients who privately retain me, I first meet separately with each spouse for about an hour, to understand their individual perspectives on the situation and what each of their needs, concerns and priorities are. One of the topics to be covered in such meetings is screening for power imbalances and domestic violence and any accommodations which might be needed for that.
Assuming everyone is comfortable with proceeding after those intake interviews, I then schedule a joint session, in which we start by reviewing and signing my standard mediation agreement, which discusses my role as an impartial third party to assist in negotiating a separation agreement.
Once that preliminary stuff is dealt with, we move to collecting information from both parties, confirming and clarifying the points on which there is already some agreement, and determining in what order you want to approach the issues that are outstanding. Then we work through them, issue by issue, as efficiently as possible.
When I am being retained by lawyers for the two parties, and those lawyers are attending and participating in the mediation, I typically schedule a brief phone conference with the lawyers to discuss the matter, and ask the lawyers to do the screening work for me, and to prepare a mediation brief or memorandum outlining the issues and any important documents. This takes the place of intake interviews I would otherwise schedule with each party myself.
When mediating for a separating couple who do not have their lawyers present, I try to limit joint mediation sessions to approximately 2 hours, because people tend to get overloaded and shut down emotionally, if we go much longer. This usually means a few sessions are required to get the various issues resolved, before reaching the point where an agreement can be drafted.
I use various pieces of software developed for the legal profession to perform support and tax calculations, and property equalization calculations. I also provide sample parenting plan templates for people to consider and discuss to help guide your decision making within appropriate parameters.
In matters where I have been retained by the lawyers for the parties, or their case is already in the court system, we usually schedule a full-day session for such mediations, because a lot of the background work has already been done by the lawyers and everyone will want to focus on getting the remaining issues resolved, if possible. In those cases, if the matter is settled, the lawyers will draft Minutes of Settlement or a separation agreement.
For people who retain me without their lawyers being involved, I normally prepare the draft separation agreement. It is always recommended that parties get independent legal advice (ILA) before signing any agreement I prepare for both of them, as no one is perfect and something could have been missed that another lawyer would catch.
The advantage is that when you go for ILA after I have drafted your agreement, you are taking along with you not only a draft agreement, but also a net family property calculation, and support guideline calculations and (if applicable) a parenting plan, all prepared on software and using formats that independent lawyers will recognize and feel comfortable with.
This makes the ILA process much less likely to undo or duplicate everything you accomplished in your mediation (as can sometimes happen when non-lawyer mediators are used). If you choose not to get ILA, I can’t force you to do so, but then I will insist that you sign detailed waivers which make it clear that I was not providing legal counsel to either party and only acted as the impartial mediator for both.
Family law and estate disputes can involve complex legal principles and nuances, as well as complicated tax rules and valuation principles. Non-lawyer mediators, no matter how good their mediation skills, rarely are familiar with these issues due to lack of relevant training and experience. Here are some of the questions you should be thinking about and asking when selecting your mediator:
These are just some of the questions to ask a non-lawyer mediation company before you opt for one of their packages. If the answer you get is that you will be referred out for such advice, or some expert will be brought in to assist with those questions, that’s a step in the right direction but how much extra will that cost you?
An experienced family law lawyer or estate litigator can answer those questions immediately, or know when it is actually necessary to retain an outside expert for assistance, but non-lawyer, accredited mediators are often not sufficiently familiar with these issues to even be aware of the questions they should be asking. These are items that need to be addressed during the mediation, rather than at the end, because the answers can change the calculations.
This actually saves on lawyer time when all is said and done and, as a result, it also saves both parties a lot of potential and unnecessary extra expense.
No. People naturally fear that their expenses will go through the roof if they involve lawyers in their mediation. For that reason, one of the chief selling points of non-lawyer mediators is that their services are less expensive because they avoid using lawyers until absolutely necessary, to draft the agreement or process a divorce.
What they don’t tell you is that an average, low to mid-conflict separation, can often be mediated by an experienced lawyer-mediator in 3 – 4 sessions of approximately 2 hours each, plus the intake interviews and another few hours of drafting time to complete the agreement. At an hourly rate of $400, that lawyer-mediator can have you in and out, with a completed separation agreement for somewhere in the ball park of $6,000 to $7,000, plus HST. That is a total cost, shared equally by two people.
Most non-lawyer mediation companies have packages that start at $4,000 or $4,500 **per person** and range upwards from there. And they only get a lawyer involved near the end, instead of all the way through your process, or some of them send you off to your own lawyers with a simple memorandum of agreement and you have to separately pay your lawyers to do the formal drafting of the contract. Which of those approaches looks like the better deal?
I charge $400/hour for my time spent. Approximately 15 hours is a general range of time most private family law mediations require, which includes intake meetings, several joint meetings and drafting the agreement and reviewing it with the parties. This time frame can vary up or down somewhat depending on the complexity of the issues that have to be resolved but that is the norm.
When mediating estate disputes it can be more difficult to estimate how much time will be needed. If the parties have been referred to me by lawyers and are represented during the process, one full day is often sufficient. If the parties are not represented and if there are more than two parties in the dispute, the time required can be considerably longer and may require multiple meetings.
In the case of mediations referred to me by lawyers, in both estate matters and family law matters, where those lawyers have prepared briefs for me and are participating and assisting their clients during the mediation, the time required is generally about 10 – 12 hours, including preparation time and conducting the mediation.
Normally the parties share this cost equally, subject to any special arrangements that may be negotiated. I ask for a reasonable retainer up front, to cover the estimated average time required for the issue that needs to be resolved. Any unused part of the retainer is refunded to the parties.
