Anne Freed holds a BA (Honours Sociology), JD (Juris Doctor, Law Degree), Master of Laws Degree (LL.M.) in Alternative Dispute Resolution, Advanced Training in Mediation, Arbitration and Collaborative Practice, Certification in Collaborative Practice
Welcome to our beautiful hot summer! Today’s blog is directed to parties who are in Divorce Court, and also to their lawyers.
For those of you who are in the middle of a Court Process and feel like you’re getting nowhere, you may have the option of trying Mediation, alongside the Court process.
QUESTION: Can you switch to Mediation when you’re in the middle of Court Proceedings and feel like you’re getting nowhere?
SCENARIO: Bob and Carol are in the midst of bitter Court Litigation in their Divorce. Their trial date is fast approaching, and their lawyers – Ted for Bob and Alice for Carol – have told them that they require huge fees for trial.
QUESTION: Can Bob and Carol try Mediation in an attempt to resolve their issues – and thereby avoid trial – while in the midst of their Court process?
ANSWER: Absolutely yes! In fact, this may be the perfect time to do this, as will be shown by my real-life example below. (Note, all names have been changed for confidentiality.)
Bob and Carol were told by their lawyers that their Divorce trial was scheduled for the following week! “As such, they were on the proverbial eve of trial!” Ted and Alice – the parties’ lawyers – suggested that the parties try Mediation in the hopes of settling their matters outside of Court and thus avoid going to trial.
The parties’ lawyers retained me as the Mediator.
To describe my background, I am a Senior Family Law Lawyer and have practised Family Law for over 38 years. I also act as a Mediator in Family Law matters.
The Mediation was scheduled for a full day at my office: Bob and Carol, together with their lawyers, Ted and Alice, and myself.
The day began with aggressive back-and-forths between the parties’ lawyers. Clearly the lawyers didn’t like each other – as often happens in protracted and adversarial Family Law matters!
As the Mediator, I used my Process Expertise to bring down the volume in the room. For example, I established the important ground rule that no one interrupts when a party, or their lawyer, or the Mediator is speaking.
One lawyer was clearly more experienced and more assertive than the other. I used my Mediation skills to balance the power dynamics in the room.
We broke for lunch mid-day. On entering the lunchroom, to my surprise, Bob and Carol were sitting beside each other, peacefully eating their lunches!
This was the clue that I needed to solve the case!
On returning to the Mediation room, I asked Bob and Carol to speak directly to each other. My questions were crafted with the purpose of eliciting from the parties – as I had seen in the lunchroom – that they still had love and commitment for each other. Indeed, each told us that their hurt and pain at the breakdown of their long marriage – compounded by the adversarial Court Proceedings – had been a major stumbling block and escalating factor in their Divorce.
By the end of the day the parties settled the vast majority of their issues, and the balance soon after. Bob came to my office to pay the balance due and thanked me, telling me that he and Carol were very pleased with the results. In fact, he told me that Carol was making a special dinner for him that evening to celebrate their settlement!
Conclusions:
It’s never too late to try Mediation as a way of resolving the issues in a Matrimonial Matter, even when one is in the might of Divorce Court Proceedings. In fact, it was precisely the timing of Bob and Carol’s matter – on the eve of trial – that propelled the parties to engage in a constructive Mediation process, in which they actively tried to settle their case under the pressure of the imminent trial date (called “BATNA” in Mediation).
Mediation provides a forum for parties to discuss the important non-legal aspects of their Divorce. This includes discussing each spouse’s interests, wants and needs, plus the emotional components in the room – the ‘elephants in the room’ that can often derail settlement if not addressed by the mediator.
Putting these non-legal aspects on the table will greatly assist in the parties reaching a settlement satisfactory to both.
In contrast, in the Court process, the trial Judge must consider only the law when making her decisions. At a European conference I attended several years ago, the chief Judge of the particular jurisdiction told us that she envied the fact that, as a Judge, she was not party to the non-legal issues that were often so fundamental in what was going on in the Divorce case, while we Lawyers and Mediators were.
Note that, if the Mediation process did not work for Bob and Carol, they still had the recourse of going back to Court, which had been running parallel to the Mediation and not withdrawn. Often Family Law Lawyers have Mediation and Court running side by side in their matters. The judge will usually grant a stay (adjournment) of the Court Proceedings if both parties wish to try mediation
The moral of the story is that – whatever process separating parties decide to use – Court, Collaborative Process and/or Traditional Negotiation – they are free to put aside their process and try Mediation. The Mediation may well – with Court Proceedings hanging over them – propel them to try to settle, and result in a settlement in the Mediation, as it did in Bob and Carol’s case.
Needless to say, for Bob and Carol, trying Mediation resulted in their saving the substantial fees that they would have had to pay their lawyers for a Court Trial, plus the unpredictable outcome of a Family Law Trial (the subject of another article!).
For those of you – and your lawyers – who are in Court and interested in trying Mediation as an alternative and hopeful way of solving the case, feel free to contact me at anne@annefreed.com or telephone (416) 368-0700.
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, Certification in Collaborative Practice, as well as over 38 years’ experience in the practice of Family Law, Family Mediation and Arbitration. Anne also is a Certified Family Law Mediator. In addition, Anne is a Certified Specialist in Family Mediation (FDRP Med) and OAFM Accredited Family Mediator (AccFM).
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.
CLIENT TO HERSELF: “Why is my lawyer making me prepare financial disclosure when all I need is a separation agreement?”
CLIENT TO LAWYER: “I know what my husband has and he knows what I have. We’ve agreed on how we’re dividing the assets. Just draft it up so we have a legal separation agreement!”
These are comments often made by clients who have retained lawyers to assist them in negotiating a Separation Agreement. Reasons include:
I (the client) don’t have the time or patience to do this work;
I don’t want to pay for my lawyer’s time in doing this;
This is just a make-work project by the lawyers (after all that’s why they’re all rich, isn’t it!); and
I trust my spouse!
So why is financial disclosure in negotiating separation agreements (and marriage contracts also!), necessary?
For the answers and my full article please click here. If you have any trouble connecting to the complete article, please email me and I will send it to you – anne@annefreed.com
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, Advanced Training in Mediation, Arbitration and Collaborative Practice, Certification in Collaborative Practice, and is a Certified Specialist in Mediation (FDRP Med)
Happy almost Spring-Time! For today’s topic, I will discuss how to have a Confidential Divorce.
In this regard, it is important that you know that, when one’s matrimonial matter goes to Court, the Court materials including Pleadings, Affidavits and – most importantly – the parties’ Financial Statements and Financial Documents will be in the Court file, and will be available to any members of the public for viewing.
Let’s return to Harry and Sally’s situation. Between them, they possess considerable financial assets, and also debts. Also, they have a complicated financial picture.
There are many processes available to Harry and Sally to negotiate their Separation Agreement and Divorce. It is of utmost importance to each that their financial records remain confidential. There are several processes that offer such Confidentiality. They include the following:
Mediation, and
Mediation/Arbitration (also called/Med/Arb).
We will assume that Harry and Sally have retained lawyers. Harry and Sally have heard from friends about these processes and are interested in utilizing them. They speak to their lawyers and their lawyers are on side. In fact, Judges at the Courts also actively encourage Mediation to be held, outside of the Court – even to happen alongside of the Court process – to try to settle all or some of the issues in the Court matter.
Harry and Sally decide with their lawyers to try a Mediation/Arbitration Process. This is a 2-stage process where the parties engage in private Mediation with their lawyers present, with a Mediator who – as the issues are financial and legal – is a lawyer. If Harry and Sally cannot resolve their issues in the Mediation, then the Mediation process will end and will be replaced by an Arbitration Hearing.
In this, the Mediator will take off her Mediator hat and put on a new hat: her Arbitration hat. The Arbitration will proceed as a Hearing – much like a Court Hearing, with witnesses and in accordance with the Rules of Evidence just like in a Court Process. At the end of the Hearing, the Arbitrator will make the Decisions, and these Decisions will be binding on Harry and Sally just as Court Orders would be.
It is important to note that, in both these processes – Mediation and Med/Arb – Financial Information and Documentation in detail must be produced, in order to have a binding Agreement between Harry and Sally, and not have to look over their shoulders in the future. Harry and Sally must lay all of their financial assets and documents on the Table. Full Financial Disclosure is a fundamental prerequisite to have a lasting and binding Settlement, as Harry and Sally each need to have all the financial information about the other on the table in order to be able to make informed decisions (see my blog on “Financial Disclosure”).
In Mediation, and in Mediation/Arbitration, Harry’s and Sally’s Financial Information will remain Confidential to the parties, their lawyers, and the Mediator.
It has been found that the “threat” of an Arbitration Process – where third parties not Harry and Sally shall make the decisions regarding their lives, often has the effect of the parties settling in the Mediation stage!
Where parties divorcing have high net worths and financial information that they do not want to be available to the public, Confidentiality considerations are especially important.
The one caveat in a Mediation/Arbitration Process is that – if Harry or Sally wishes to appeal the Decision of the Arbitration –the appeal must go before the Court. Once at Court, all the parties’ financial records will be available to the public.
In a Mediation only Process, the Confidentiality will remain.
For further information on these processes, see my blogs as follows:
My practice focus, as a lawyer and mediator with over 35 years experience and expertise, is on acting as a Mediator in a Mediation Process, or as a Mediator/Arbitrator in a Mediation/Arbitration Process. If you are interested in discussing the possibility of retaining my services in either of these processes, feel free to contact me at anne@annefreed.com.
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, Certification in Collaborative Practice, as well as over 35 years’ experience in the practice of Family Law, Family Mediation and Arbitration. Anne also is a Certified Family Law Mediator. In addition, Anne is a Certified Specialist in Family Mediation (FDRP Med).
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), Certified Specialist in Mediation (FDRP Med), Certification in Collaborative Practice, Advanced Training in Mediation, Arbitration and Collaborative Practice, as well as over 35 years’ experience in the practice of Family law, Mediation and Arbitration.
Welcome to my fall newsletter! I hope you are enjoying our beautiful fall weather. Today I shall discuss the different hats that must be worn by the Mediator in the Mediation/Arbitration process.
Continuing from that, I shall discuss with you today the different hats that the Lawyer – who has been retained by the parties to be their Mediator – must wear, at the beginning of the Mediation process, and then change to a different hat as the process changes to an Arbitration.
I’ll use our old friends Harry and Sally as the parties here. I encourage you to read my earlier blog as Part 1 of my discussions about the Mediation/Arbitration (Med/Arb) process. This is now Part 2.
The first stage of the Mediation/Arbitration process is the Mediation stage.
In this regard, Harry and Sally meet with Mickey Haller (whom some of you may know as the ‘Lincoln Lawyer’!). They decide to retain Mickey as their Mediator to help them resolve the issues in their marital breakdown.
Once retained, Mickey must take off his Lawyer’s hat and replace it with a Mediator hat, in order to effectively mediate for the parties.
Note: Sally and Harry each have decided to retain a lawyer to represent them. In that regard, Sally with her lawyer and Harry with his lawyer will appear before the Mediator/Arbitrator.
In Mediation, Mickey works with the parties and their lawyers with the objective of the parties reaching Agreement on all their issues. As their Mediator he will consider – in addition to the law – the interests, wants and needs of Harry and Sally and their children.
It is important to note that Mediation is very different from the Court process, where the Judge must consider only the law and the proven evidence. Similarly, in the Arbitration process, the Arbitrator must consider only the law and the proven evidence.
In our case, Harry and Sally are unable to reach Agreement on their issues. Therefore, Mickey terminates the Mediation Process, and the process transitions to an Arbitration Process.
Now, Mickey must – again – change hats. This time he must put on the hat of an Arbitrator.
In the Arbitration Process, Mickey must strictly follow the Rules of Evidence – including the Rules against Hearsay – and consider only the proven facts of the case. He must disregard any comments that have been previously made by the parties or their lawyers in the Mediation phase, as many of these discussions were opinions or hearsay, and not evidence in accordance with the Rules of Evidence.
The Arbitration Hearing is much like a Court Hearing, and must follow a set of prescribed Rules, except that the parties have much more of a say in the timetable of the Arbitration Hearing.
During the Mediation, our Mediator Mickey often took the liberty of expressing opinions as to how Sally’s and Harry’s case might go. However, in the Arbitration, Mickey must disregard all opinions, hearsay and unproven evidence that he heard or gave during the Mediation phase. He must consider only the proven facts and the evidence.
Mickey may, as a result, come to a completely different decision than he might have ‘expressed’ or implied during the Mediation Phase.
In order to be effective in the Mediation/Arbitration Process, Mickey must maintain the highest standards of ethics. He must remain neutral in both processes. He must be able to separate what he heard in the Mediation phase, from what he will now hear in the Arbitration Hearing.
It is important for the Reader to note that, and the end of the Arbitration Hearing, the Arbitrator – Mickey – will make is an Order that is binding and final on Harry and Sally, just as in a Court Order.
Therefore, it is incumbent upon the parties and their lawyers to interview, consider carefully and ultimately choose the “right” Mediator/Arbitrator for their matter. This person understands the challenges that this hybrid process poses, and is acutely aware of the three changes in hats required, in order to ensure that the Med/Arb Process is effective, fair and satisfactory to both parties.
In my Master’s of Law studies in Alternative Dispute Resolution (ADR) – which I engaged in as ‘post-graduate work’ subsequent to my Law Degree – I had the opportunity and time and indeed it was my goal, to reflect on the serious ethical issues that a hybrid process such as Mediation/Arbitration presents.
The Mediation Process is fundamentally different from the Arbitration Process and the Mediator/Arbitrator must ensure that he/she wears a separate hat for each of these processes.
As a senior Family Law lawyer, and with my education and experience in ADR processes – of which Med/Arb is one – my practice focus is on acting as a Mediator in Mediation matters, and as a Mediator/Arbitrator in Mediation/Arbitration matters.
In my Med/Arb practice, I bring my many years of expertise in Family Law, plus my understanding garnered through my intensive ADR studies, to the table.
Feel free to schedule a meeting with me if you wish to explore the possibility of utilizing this process in your matter.
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, Certification in Collaborative Practice, as well as over 35 years’ experience in the practice of Family Law, Family Mediation and Arbitration. Anne also is a Certified Family Law Mediator. In addition, Anne is a Certified Specialist in Family Mediation (FDRP Med).
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 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, as well as over 35 years’ experience in the practice of Family Law and Mediation.
