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 email@example.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.
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 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 firstname.lastname@example.org. 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 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, as well as over 35 years’ experience in the practice of Family law and Family Mediation.
Happy New Year to my LinkedIn Readers! I hope you are enjoying our Montreal-like snowy winter! We had a brief respite and then COVID loomed its head again with the new strain of virus: the Omicron. I wrote a blog last November about a possible solution for couples experiencing difficulties in their marriage or cohabitation, exacerbated greatly by the restrictions forcing couples to remain inside with no escape from each other. This article has now become relevant again because COVID is still here. Here is my article:
MEDIATION OF MARRIAGE CONTRACTS – YES, THEY CAN BE DONE MID-MARRIAGE! – AS A SOLUTION FOR COUPLES HAVING COVID CLAUSTROPHOBIA:
Reflections by a family law mediator on COVID’S effects on marriages and common law relationships, and how mediating a marriage contract can provide a solution.
How has COVID affected people’s marriages and relationships, and if so, is there a viable solution?
The COVID crisis has forced us to live our lives inside our homes almost 24/7. The normal routine where spouses spend the workday in separate places has been shattered. Children do their schooling at home. Thus, the ability to ‘get away’ from one’s spouse and children has been sorely reduced if not eliminated. Today’s question is: Can marriages and relationships survive all this forced togetherness, and if so, how?
1. In ‘normal life,’ there are long marriages, good marriages, okay marriages, bad marriages and terrible marriages. By marriages, I am including common law relationships. For today I define a “good marriage” as one where the spouses are able to enjoy each other’s company, find space from each other even in the confines of the home, and most importantly they are able to face and handle conflict. By that I mean that the spouses are able to face conflicts when they arise, as is inevitable in relationships, and have the difficult conversations necessary to sustain a healthy relationship. Even these good marriages are being tested in this challenging time of COVID, and each party must put – in my view – extra energy and work into their relationship for it to continue to thrive.
2. Then there are the ‘okay’ marriages where, before COVID, the spouses were apart much more than they were together, with work, activities, get-togethers with friends and colleagues and so on, separating them through the week. Before COVID, this marriage worked because they could physically be away from each other most of the time. In these marriages, spouses often cannot deal with conflict and one or both sweep conflicts under the rug such that they become an insurmountable pit over time. These spouses stay together because of convenience, habit, common friends, because they like their way of life, etc. In this relationship, it’s probable that, because the spouses are now forced to be in close quarters with each other almost 24/7, their relationship is sorely tested. This is a relationship where, as COVID progresses and the shutdowns continue without a known end, the tension between the parties becomes thicker and thicker, with no resolution.
3. Number 3 is the bad marriage. This is a marriage where there was, prior to COVID, almost no connection between the parties, where they were like ships passing in the night (also previous). In this relationship, there is mental abuse and also, likely physical abuse. This situation is explosive and dangerous. It is a situation which is untenable and unsafe to remain in. There are many resources in the community for the spouse who is being abused. It is not in the realm of this article to discuss this extremely important topic.
There are remedies for spouses who are in situations 1 or 2 above. One remedy is that the parties can negotiate a marriage contract. They know that there are problems in the marriage/relationship but are not ready to leave. In fact, at this time they often can’t leave because of COVID. However, the parties (or one of them) want to have certain terms agreed upon going forward, including regarding the children and property and financial issues. These issues can also include who will get the home if the parties separate. Even such issues as division of labour in the home can be put in a marriage contract.
The law is clear that parties can negotiate a marriage contract or cohabitation agreement in the middle of a marriage. Most people think that a “Pre-nup” (an American term) can be negotiated only before marriage. However, this is not the case. In Ontario we call these “marriage contracts,” or “cohabitation agreements” and they can be made at any time during the marriage or cohabitation. A marriage contract can provide a great comfort and security to the parties in this time of COVID. They can be negotiated in many different ways. One positive way – if viable for the parties – is through Mediation.
Welcome to Spring! We’ve been blessed with sunny weather and, with the COVID vaccines now a reality, are finally beginning to see the light at the end of the tunnel.
the COVID pandemic – now over a year long – has exacted a huge toll on
marriages and relationships. For many it has resulted in people deciding to
separate, and to seek resolution of their issues via a Separation Agreement.
Many of you have read my November 2020 blog, which was about the fact that parties can negotiate a marriage contract in the middle of a marriage (or cohabitation agreement in the middle of a common-law relationship). For those who have done so, hopefully this may have resolved issues for the parties to continue their relationship.
My point in today’s article is that, in the quest of getting it over with by doing a “quick and dirty” Separation Agreement, that will most likely not resolve the issues and may well come back to haunt the spouse later. I recently had a client – Mrs. X – who came to me several months after she had signed a Separation Agreement with another lawyer. Mrs. X deeply regretted the Agreement that she had made and felt that she had settled for far less than she should have. She told me that she had separated in the fall and had signed a Separation Agreement also in the fall. Further questioning revealed that, in the interests of getting her Separation Agreement finalized quickly, she had requested that her lawyer take several shortcuts. These shortcuts included not obtaining a value of the matrimonial home, not requesting a valuation of the spouse’s pension, one of the spouses not providing the required full and detailed financial disclosure, and so on. It was clear that Mrs. X had not provided all of the detailed documents necessary so that her lawyer could do the necessary analysis to calculate Mrs. X’s legal entitlements. It was also clear that Mrs. X had been very worried about legal fees, and hence had limited her previous lawyer’s time/work.
6 months later, what was Mrs. X to do? I told her that the good news is that, in
family matters, a spouse can apply to the Court to set aside a Separation
Agreement. However, this is an uphill battle, and the onus will be on Mrs. X to
prove the necessary circumstances/elements that the law requires in order to
win such an application to the Court.
difficult part is that – in addition to the fact that in Court there are no
guarantees – the work that her new lawyer will have to do will greatly add to her
legal fees, as the work will be much more complicated than had Mrs. X allowed
her previous lawyer to do the necessary work in the first place.
So, today’s teaching piece is that, if you’ve decided to separate, beware of doing a “quick and dirty” Agreement. You may well succeed in your goal of saving time and legal fees. However, in doing so, you will have most likely limited your lawyer’s time and work to do her/his due diligence necessary to meet the long-term results you want, i.e. a Separation Agreement that is fair to you.
I wish you all a Happy Passover and Happy Easter.
Until next time, Stay safe.
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, as well as 39 years’ experience in the practice of family law.
Firstly, I want to wish you all a Happy and Healthy 2021.
Today’s topic is: How to retain a lawyer for one’s separation/divorce without incurring huge legal fees, or, to use the colloquial:
How to hire a divorce lawyer without breaking the bank!
In this time of COVID, the effects are not just to our health but also include the emotional and financial fallout. The effects of living under one roof for this long and – and so far, unending – period of time, test even the best relationships and marriages.
marriages that were “on the rocks” before the pandemic and its closures, the
pandemic has accelerated the parties’ problems to the point where many people –
including Sally – have decided that they want to take steps immediately to
separate and divorce.
there is a huge roadblock facing Sally. She wants to hire a lawyer – as she’s heard
nightmare stories from people who have represented themselves – however she
knows that will necessitate large funds.
feels stuck. She wants to leave the marriage now but can’t afford to
hire a lawyer to help her in this.
There is an
alternative for Sally called “unbundled legal services.” What this means
is that Sally can use a lawyer as and when needed during her case. The lawyer will
help her in parts of her legal matter and from time to time rather than for the
Sally will do the work herself she feels is within her capability. For example,
Sally will have a first meeting with a lawyer, and with her lawyer they will
look into what parts of her case she wants the lawyer to do and what parts she
will do herself.
The “WIN/WIN” for Sally in choosing this process, is that
Sally will save a great deal of money on legal fees, and at the same time she
will be able to proceed with her divorce with the help of the lawyer, without
the financial worry of the fees she’d have to pay a lawyer who is working on
her case full time. She will get the benefit of expert legal advice from her
lawyer, but without the fear of huge legal fees. In this process, the lawyer and
Sally will work out what the lawyer will need for each part of the process that
Sally wants the lawyer to help her on. Therefore, fees for these discrete parts
can be estimated in advance and will be much lower, than if Sally retains a
lawyer on a full retainer basis.
can provide a solution for Sally and many others who have made the decision to separate
but can’t afford the legal fees to do it right. “Right” means that Sally
can have help from the lawyer when she wants and needs it – be it concerning
custody, access, support, and/or equitable division of property and protection
of her rights.
services of a lawyer on an ad hoc as needed basis provides a much less
expensive financial alternative to Sally, such that she can get her divorce
started right away and begin the process of removing herself from a situation
that has become intolerable, now rather than later.
This is a valuable
option for people to consider in these difficult times.
As a family
law lawyer and mediator, I offer this service as one of a basket of process
For further information,
please feel free to contact me at (416) 368-0700 or at email@example.com.
For more information on unbundled legal services see my website at www.annefreed.com, and www.familylawlss.ca, which has further information and a list of lawyers who also offer this process.
meantime, Please Keep Safe! 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,
as well as 39 years’ of experience in the practice of family law.