Dear Readers, See below my blog on an efficient way of streamlining your Divorce.
Dear Readers,
Welcome to our beautiful Spring weather! In today’s blog I explore a new and innovative option for resolving one’s issues in Divorce and in the breakdown of a Common Law Relationship, that is viable and solution oriented.
This process is called “Mediation/Arbitration” (or “Med/Arb”), and offers just such a solution.
Med/Arb is a process where the parties agree to have a Mediation as Step 1. If the parties reach Agreement on all their issues, then a Separation Agreement will be prepared. However, if the parties aren’t able to reach Agreement on all the issues in their Divorce through Mediation, then the process will change to an Arbitration. The Mediator then becomes the Arbitrator.
In Arbitration – the second stage – there will be a solution, as the Arbitrator will make a formal Order at the end of the hearing. This Order is enforceable, just as a Court Order.
An Arbitration hearing is very much like a Court hearing. However Arbitration avoids the delays, adjournments and complicated procedural requirements that Court proceedings often have. The parties select a timetable that works for them, unlike in Court where it’s not in their control.
The pros of using this hybrid process include that, in the Mediation Stage, the parties work to reach agreement on the terms of a Separation Agreement resolving all their issues. The Mediator assists the parties to help find final solutions. However, if the parties can’t reach agreement, then the Mediation transitions to an Arbitration.
This is when the solution comes via Stage 2: the Arbitration process. In this process, the Arbitrator will hear submissions by both parties, and the Arbitrator will make a decision that is binding and has the same effect as a formal Court Order.
In both these processes the parties’ respective lawyers are involved.
Using this hybrid process often encourages the parties to work very hard to reach Agreement during the Mediation stage, as they know that if they are unable to reach Agreement, then the Arbitrator will make the decisions for them.
Having had many years of experience (over 35 years) as a Family Law Lawyer and Mediator, and with extensive training in Law, Mediation, Collaborative Divorce, and Arbitration, I utilize Mediation/Arbitration as one of several processes my firm offers for resolving one’s divorce.
Med/Arb combines peaceful resolution, together with the hand of the law when needed, with the result that the parties will obtain a final settlement of all the issues.
A wonderful benefit of using this process is that the parties will have closure at the end of it, and can now move on to the rest of their lives.
If you are interested in exploring the possibility of using Med/Arb, please feel free to contact me at anne@annefreed.com. I provide a 30-minute Complimentary Consultation, during which we explore the many options available to you to resolve your divorce in the best way possible for you.
Until next time!
Anne
Anne Freed holds a BA (Honours Sociology), JD (Juris Doctor, Law Degree), Master of Laws Degree (LL.M.) in Alternative Dispute Resolution (ADR), advanced Training in Mediation, Arbitration and Collaborative Practice, and Certification in Collaborative Practice, and is a Certified Specialist in Mediation (FDRP Med), as well as over 35 years’ experience in the practice of Family law and Family Mediation.
Dear Friends, For those of you who may be in the early stages of Divorce, see my blog below on the advantages/disadvantages of going to Court versus mediating your dispute.
Dear Friends,
Happy Spring Time! I’ve written today’s article from the perspective of having represented a party in a recent Court battle regarding the custody and access of a young child. My client was the father and we won three consecutive Court Orders granting him the custody of his child. A victory to be sure! However, I want to address here some of the downsides of spouses battling in Court.
It’s been a while since I decided to take on a Court matter, and I was astounded at the number of deadlines, rules and forms that today’s Courts require for the stated purpose of “making Court easier for the ‘unrepresented litigant!’” In fact, it’s just the opposite!
Having focused my law practice for many years on mediation, collaborative law and peaceful negotiation, the contrast with the Court process was starkly evident. In mediation, there are no court orders in mediation. The parties, with the help of their mediator, work to reach an agreement they both can live with. The only deadlines are those the parties themselves agree upon. The only rules are those of civility and respect: “Try not to interrupt the other person when he/she is speaking.”
The research shows that Alternative Dispute Resolution (ADR) processes have a much better effect on the children than Court. Many will remember the Toronto Life article: “The Divorce from Hell” where, after a many-years custody battle, the children refused to talk to either parent. This is not unusual when parties litigate their Divorces in Court.
When I act as a mediator, I continue to use my lawyer expertise in the mediation, providing a wealth of legal information to both parties that each party would be receiving from their separate lawyers. While stopping short of giving legal advice (not allowed by Law Society Rules), I go very far in providing detailed information to the parties. Also, I work with them to help them prepare the financial disclosure necessary in family law cases. The result is a considerable cost savings to them. Coupled with keeping the communications on track, I provide the parties the tools they need to negotiate the issues involved – both legal and non-legal – when people separate.
In contrast, the Court process is often ‘user unfriendly!’ Legal fees escalate to the point of being ultimately unaffordable for the not-wealthy client.
It’s well-known that ‘95% of cases settle at the Courtroom Door,’just before the trial starts. A major reason is that, by the trial date, each party has spent many thousands – even hundreds of thousands – of dollars in legal fees. This creates a big incentive for them to settle their matter now as, looking ahead, there will be a lengthy trial of a week or more, which will add more legal fees. In addition, there’s a risk of the winning party being awarded costs by the trial Judge. This adds an additional cost burden on the losing party to pay his/her spouse, in addition to their own legal fees.
By the end of the litigation, people are depleted both financially and emotionally; and their children often become alienated from both.
So, I say that, instead of spending all that money ( and time; sometimes years) to get to trial and then settling, why not replace that with a much more cost effective process such as mediation, where the parties can settle much earlier.
Despite having won three consecutive Orders in my client’s favour in my case, I noted that my client still wasn’t happy. This reminded me of my previous court days (in the ‘vineyards of Family Law!’)spent at 145 Queen Street (now the beautiful Opera House!). A major reason why 20 years ago I decided to change my practice focus to Mediation, was that it was clear that, even when my clients won, Court was a no-win for them. This was due to the costs – bothfinancial and emotional – of the Court process.
At a collaborative law dinner I attended, the speakers – two Judges – said that they wanted more collaborative lawyers to do Court cases, as ‘it would be good to have these kinds of lawyers in the Courts.’ This was also in my mind when I embarked on my recent Court case. I note that, on the third Court date, we had a Judge who was very supportive of using alternative dispute resolution (ADR). When we finally got into the Courtroom, there was a discussion of the parties’ substantive issues e.g. custody, resolving access terms, etc. However, the costs, barriers, rules, papers and deadlines required before we were able to get before the Judge, were beyond belief. In the Courts today, it seems that ‘Process trumps Substance.’ By the time the parties get to the Courtroom door, they are drained due to the never-ending process requirements. It’s only once they get into the Courtroom that their substantive issues are finally addressed.
Of course, in some cases Court is the only option. In my recent case, the father – on my recommendation – initiated the Court Action as it was his only option under the circumstances.
Also, it’s important to note that Mediation is not for everyone. In some cases Mediation is not a viable process for parties. (More about this in a future article).
The decision as to whether to use mediation in one’s divorce should be made with the help of an initial consultation with a lawyer, whose legal duty it is to advise clients about the various ADR processes available to parties as an alternative to Court.
In conclusion, if spring finds you or someone you know entering the gates of divorce (hopefully not to be confused with other gates!), I suggest that you consider using the mediation process as a positive, more civilized, more child friendly and much less expensive way to divorce!
Until next time!
Anne Freed holds a BA (Honours Sociology), JD (Juris Doctor, Law Degree), Master of Laws Degree (LL.M.) in Alternative Dispute Resolution (ADR), advanced Training in Mediation, Arbitration and Collaborative Practice, and Certification in Collaborative Practice, and is a Certified Specialist in Mediation (FDRP Med), as well as over 35 years’ experience in the practice of Family law and Family Mediation.
Dear Readers, I just heard on the news that homes have decreased 4% in value. Therefore, for those interested in purchasing a new home, see my important blog below.
What, you may ask, does one have to do with the other? Here is the answer. Debbie and Don are engaged and planning their wedding. They plan to live in a condo in Leslieville which Debbie had purchased 10 years earlier. She had worked and saved up every penny to buy the condo and is pleased that – at age 35 – she is a condo owner. Debbie and Don – both 35 – know that, given the high divorce rate, they should have a Marriage Contract (termed a “Prenup” in the U.S.!).
Their respective lawyers explain to them that, if they should separate down the line and are living in the condo when they separate, even though the condo is in Debbie’s name, it is called the “matrimonial home.” Their lawyers explain that the law is that the matrimonial home equity is to be shared 50/50 between Debbie and Don in the event of a separation.
Debbie and Don both feel that, in such event, it would be fair that Debbie should be able to keep her investment in the condo i.e., the funds that she put into the matrimonial home. This can include the funds that she put into the matrimonial home up to the date of marriage, and/or other parameters.
The way to ensure this is to have a term in the Marriage Contract that Debbie keeps her investment in the condo up to the date of marriage.
There are other important terms that Debbie and Don can have in their Marriage Contract. Mediation is one of several processes available to the couple to negotiate their Marriage Contract. In Mediation, the Mediator must take into account the sensitivity of parties in negotiating their Marriage Contract.
If Debbie and Don’s situation rings a bell with yours, please feel free to contact me to enquire about my Mediation Services.
Until next time!
Anne
Anne Freed holds a BA (Honours Sociology), JD (Juris Doctor, Law Degree), Master of Laws Degree (LL.M.) in Alternative Dispute Resolution (ADR), advanced Training in Mediation, Arbitration and Collaborative Practice, and Certification in Collaborative Practice, and is a Certified Specialist in Mediation (FDRP Med), as well as over 35 years’ experience in the practice of Family law and Family Mediation.
Dear Readers, When choosing your Divorce process, consider using the Mediation/Arbitration process as one-stop shopping process. See my article below.
Dear Readers,
Welcome to Spring! In today’s blog I discuss a new and innovative process for people to resolve their issues when their marriage, or common law relationship breaks down.
This process is called “Mediation/Arbitration” (“Med/Arb“).
I shall use, as my couple, Harry and Sally. (For those who remember the wonderful movie, perhaps they could have tried Med/Arb in the conflict stages of their relationship to resolve their issues!)
This is a hybrid process which has two stages:
Stage 1: Mediation:
In this Mediation phase, if Harry and Sally are able to reach agreement on their issues, then a Separation Agreement will be prepared. However, if Harry and Sally aren’t able to reach agreement, then the Mediation will end and an Arbitration will begin. The mediator will take off her “mediator hat” and put on a new hat – her “arbitrator hat.”
Stage 2: Arbitration:
Arbitration is a formal hearing with strict rules of procedure similar to Court proceedings. Sally and Harry will each give evidence and there may be other witnesses. The arbitrator, having heard the evidence and then submissions of the parties’ lawyers, will make a formal Order at the conclusion of the hearing. This Arbitration Order is enforceable, just as Court Orders are.
A fundamental difference between Court and Arbitration is that, in court proceedings, the timetable of the parties’ matter is in the control of the courts and not in the parties’ or their lawyers’ control. In contrast, in arbitration, the parties, their lawyers and the arbitrator choose a timetable that works for them.
There are many other processes available for Harry and Sally to negotiate a Separation Agreement. These processes include mediation-only, collaborative divorce and traditional negotiation.
Having had 35 plus years’ experience as a Family Law Lawyer and Mediator, and with extensive training in these various processes, I utilize Mediation/Arbitration as one of several processes my firm offers for resolving one’s Divorce/Cohabitation breakdown.
It’s important to note that, in the Med/Arb process, there are potential red flags that Harry, Sally and their lawyers must consider when choosing their mediator/arbitrator. Their mediator/arbitrator should have – in addition to her/his expertise in Family Law, Mediation and Arbitration – training and experience in the ethical issues of this process, as follows:
The mediator will have heard many off-the-record statements from both Harry and Sally during the Mediation phase. It is incumbent on the mediator, if the Mediation ‘fails’ and Arbitration proceeds – to be able to ‘park’ her recollections of the parties’ statements, and to clear her mind of all of these statements, so as to be neutral in the Arbitration proceeding. As such, in Med/Arb, the mediator must take off her mediator ‘hat’ and replace it with her arbitrator ‘hat.’
I had the benefit of doing a Master’s in Alternative Dispute Resolution (ADR), years after I had achieved my Law Degree. In my Master’s studies I had the opportunity and time to reflect on these serious ethical issues.
When parties are choosing who their mediator/arbitrator will be, it is important that they inquire into the mediator/arbitrator’s professional experience and training in this specialized area.
The Med/Arb process combines peaceful resolution – Mediation – plus, when needed, the ‘strong arm of the law’ – Arbitration. The result will be that – no matter what – the parties will obtain a final settlement of all issues at the conclusion of the process.
The very fact that Harry and Sally know that, if they can’t reach agreement in the Mediation phase, their process will ‘morph’ into an Arbitration process, will provide a strong impetus for them to settle their matter in the Mediation phase. This is because they know that, once the process changes to an Arbitration, the decisions about their lives will no longer be in their hands but rather in the hands of a third party, and they will no longer have control of some of the most important decisions in their lives.
The mediator/arbitrator should – in my view – be a senior family law lawyer who is highly ethical and has the ability, training and experience to conduct a principled Mediation/Arbitration. It is required that she not only knows the law applicable to the issues, but also and most importantly in the Mediation phase, she must be attuned to the needs, interests and wants of Harry and Sally.*
It is incumbent in the Mediation phase that the mediator ensures that Harry and Sally do not feel under pressure to settle any issues. The mediator must ensure that the parties are ‘relaxed’ in this phase, so that they feel free to express their wants and needs openly, and so that they do not feel ‘forced’ to agree on terms. The mediator must also ensure that there is no power imbalance between the parties or if there is, their lawyers should ‘equalize’ the power by their representation. In this regard, the mediator will “pre-screen” the parties for such issues.
Once Arbitration begins, the ‘tone’ will be entirely different. It will not be relaxed, but rather will be a formal Court-like proceeding where, at to conclusion, the arbitrator will make an Order regarding the parties’ issues. In this phase, the arbitrator must concern herself with the law and the evidence, rather than the wants, needs or interests of the parties.
These contrasting methodologies are the essential contradiction between these two processes. It is the mediator’s challenge to ensure that these two contradictory processes ‘blend’ ethically and seamlessly into one hybrid model.
Divorcing parties are using the Med/Arb process more and more to resolving their matrimonial matters. This is because, at the end of the day, there will be a final Order. As such there will be closure for the parties.
In our scenario, let’s say Harry and Sally don’t agree on the terms of a Separation Agreement. If their process is a Mediation-Only process, the parties will walk away from the Mediation with their issues unresolved.
In contrast, because Harry and Sally are using a Med/Arb process, there will be finality at the end of the day.
A wonderful benefit of using this hybrid process is that the Harry and Sally will have closure at the end of it, and they can now move on to the rest of their lives.
Also, it’s important to point out that, let’s say our protagonists agree on 90% of their issues in the Mediation phase, they will only need to litigate the remaining 10% in the Arbitration phase.
Of course, in the movie version, Harry and Sally finally reconcile on New Year’s Eve in New York and live happily ever after. Such is not our scenario today. However we hope that, having chosen to use the Mediation/Arbitration process for their divorce, Harry and Sally will reach agreement on their issues in the mediation phase, and if not, then their matter will be resolved by an Order made in the Arbitration phase. As such, they can close this chapter and move on to the rest of their lives.
I’ve written this blog for both lawyers and non-lawyers. In Med/Arb, most often, the parties will have legal representation in the room.
Please feel free to contact me, or have your lawyers contact me, at anne@annefreed.com if you are interested in exploring the possibility of using Mediation/Arbitration as a process for your Divorce.
Anne Freed holds a BA (Honours Sociology), JD (Juris Doctor, Law Degree), Master of Laws Degree (LL.M.) in Alternative Dispute Resolution (ADR), advanced Training in Mediation, Arbitration and Collaborative Practice, and Certification in Collaborative Practice, and is a Certified Specialist in Mediation (FDRP Med), as well as over 35 years’ experience in the practice of Family law and Family Mediation.
