There are so many options: lawyer-negotiations; litigation; mediation; collaborative law; arbitration; parenting coordination, and various combinations.

I am spending the month of January teaching law students at the University of Western Ontario how to help their clients make this important decision.

The Divorce Act requires lawyers to advise their clients about negotiation as an option, and also about available mediation services.

But how does a lawyer know, at the initial interview, whether his or her client is a good candidate for mediation? Or for collaborative law or arbitration?

How can a client assess which process is likely to yield the best outcome for him or her?

The answer depends on many factors, including the client’s goals, personality, and the merits of his or her case. But more importantly, it depends on the nature of the relationship between the parties and any other factors that might affect the balance of negotiation power between the former spouses.

How do the parties communicate? How do they resolve disputes? Is there an element of control or coercion in the relationship? Is one of them afraid of the other? Is there a history of mental illness or drug/alcohol abuse?

Of course, each lawyer can ask his or her client a series of questions. But research shows that parties often do not disclose such details to their lawyers, for many reasons. And, as a mediator who used to act as a lawyer, I know that each person’s story is going to be very different. The only way to get the full picture of the negotiation dynamic is to interview both people (separately.)

This is what is known as “screening”. It would be ideal if the first stop on the family dispute resolution road was an independent third party ‘screener’, who would help the parties choose the process that will be best for them both. Such screeners are already used for arbitration, now that screening is required before anyone can begin a family arbitration case. And most family mediators conduct some form of screening. But screening is not mandatory for other kinds of dispute resolution processes.

Most lawyers however have taken some form of mediation, collaborative or screening training and know the questions to ask their clients. And clients are also increasingly informed about the different process choices available and know to ask questions.

Making the wrong process choice can have devastating impact on the client. For example, once a client agrees to arbitration, they cannot change their mind and the client can end up in a lengthy, expensive and complicated private process that they did not expect. Once a client agrees to mediation, they are expected to be able to have sufficient information to negotiate for themselves, with or without a lawyer, and may end up feeling pressure to settle before they are ready or for an outcome they do not really want. Once a client chooses collaborative law, he or she cannot then change their minds and ask their lawyer to go to court for them and may end up funding a long and costly negotiation that yields no settlement.

Each process choice has its merits and its risks. The time to ask many questions, conduct a comprehensive analysis of the case and consider all options is when the client first walks through the lawyer’s door and before any process choice is made.

And, once the choice is made, is should be re-evaluated often.

Family law cases, like all disputes, are inherently unstable and unpredictable things. What a client wants at the beginning will almost always change as the case unfolds; and the appropriate dispute resolution mechanism is likely to change as well. This explains why so many clients start with one process and end with another. This should not be seen as a failure of the first process, or bad legal advice at the start of the case– but rather proof that the dispute is evolving as it should.

We were joined by our amazing resource/admin person, Heather Glen, who quickly became an indispensable member of the team.

And we undertook to implement and manage the new court connected family mediation program at Toronto’s Superior Court of Justice, mediate393..

This project has been a resounding success in its first few months of operation. We are providing free (yes, free) mediation on-site in the Family Law Information Centre on the 9th floor. The mediators– all accredited and experienced, some lawyers and others mental health professionals– meet with clients who are in court that day for two hours to try to help them resolve urgent or limited matters. We have found that this service is a great assistance to the parties and to the court.

For those cases that need more than two hours, or are too complex to begin on-site, there is off-site mediation. This remarkable service is available to anyone in the GTA and gives them free intake meetings and then up to six hours of mediation at subsidized rates but accredited mediators.

Although the mediate393 project has kept us busy, we have also had a full teaching year, training over a hundred students of mediation, family law, screening for power imbalances and family arbitration. Our training has taken us to places as far as away as Nunavut!

We have received much positive feedback from our clients and our students. And we have learned much too; from our teaching colleagues but also from our clients.

And so we hope to keep learning in the new year, and thank all our clients for their support.

It was a case that has gone on for a long while since the parties separated. The negotiation– which had taken place both in mediation and outside of mediation between counsel– had bogged down around issues of financial disclosure.

Because of the lapse of time, among other things, each party had quite understandably become frustrated with the process and each other. At this point the clients were each blaming the other’s lawyer for the impasse, and this had the potential to de-rail further negotiations.

We made the decision to conduct the mediation entirely in caucus. I rarely do this; almost always I find that parties benefit from at least some amount of face-to-face time. It is only in cases of extreme power imbalance that I will use caucusing as the main or only means of mediating. In this case, however, the parties were exhausted and felt that they would each negotiate more effectively this way.

There are advantages to conducting a mediation in caucus. It can help the parties and counsel stay focused on analysing the pros and cons of the options for settlement, and it enhances bargaining. It can be an effective process to reach agreement, particularly at the end of the mediation, once all the information has been exchanged, interests explored and options generated.

But when parties spend the entire mediation in separate rooms, opportunities are lost. The dynamic between the parties, and the lawyers, is not always easy to predict. I have had many cases where I expected fireworks and instead found cooperation, collaboration and willingness to find mutually acceptable outcomes.

Caucus mediation is also very tough on the mediator. It means you have the responsibility to convey information and meaning, and it is easy to get it wrong. As well, the mediator has a lot of power to influence the process and outcome when he or she is the only person who has seen and heard how the parties (and lawyers) are feeling. That power can be mis-used, intentionally or unintentionally, to derail the process or pressure parties into a settlement that may not be truly voluntary.

And most importantly, I may see the softening of positions, the ability to see the other’s perspective and the opportunity for a win-win; but I am not the one who matters. The good faith that arises from understanding the other’s view; from expressions of regret and remorse; from concessions made…. this is the stuff of real mediation and unfortunately, it is very hard to let parties see this is happening when they are in different rooms.

Mediation with the parties in the same room is more “dangerous” because no one ever knows what will happen. But in my experience, taking the risk is almost always worth it if the mediator is experienced, skilled and fully aware of the dynamics of power between the parties. And in those cases where the mediation cannot be conducted safely— emotionally or physically– then caucus mediation is the next best thing.

With increased provincial funding for court connected mediation, there is work for mediators in every court of the province.

These are not high-paying jobs; and it is not easy work. On-site mediators deal with challenging cases on an urgent and stressful basis. But the service to Ontario families is fantastic; people now have access to free mediation provided by skilled and experienced mediators.

And the government is also subsidizing full day mediations, away from the court, for anyone who is separating, whether they are in court or not. This is an unprecedented service for separating couples who want to try mediation at what is for many a nominal cost. Again, this service is provided by accredited Ontario family mediators.

On December 1st, come to Riverdale Mediation’s first bi-annual Family Mediation Information Night. Hear from experienced mediators like Heather Swartz, Antoinette Clarke, Elizabeth Hyde, Christine Kim, Barbara Benoliel, Hilary Linton and many others. We will help you navigate the accreditation process including:
– what are my training options?
– how long does the training take?
– what does it cost?
– what skills and foundational education do I need to have?
– what kind of internship opportunities exist?
– what organizations accredit family mediators?
– what kind of insurance do I need?
– what work options exist?
– how much do mediators get paid?

And much more. Join us for an informal night of wine and cheese, and meet your future colleagues!

See Riverdale Mediation Family Mediation Information Night for more information, or call Heather Glen at 416-593-0210.

I joined Raj Anand, William Horton and Yasmeena Mohamed on a panel called “Effective Mediation Briefs and Tactics: tips from mediators and arbitrators.”

We were joined by a full room of young and interested lawyers who were participating in the sold-out full day conference, followed by a ten-course banquet.

I learned during our panel discussion that there are not as many differences among family, labour and business mediators and arbitrators as one might expect. Counsel, party and mediator preparation before the event goes a long way to making the process a useful one. And in all cases, it is critical for lawyers to understand their own client’s needs to make sure they select the mediator or arbitrator best suited to the case and the needs of the parties.

Family and labour/human rights mediators often meet with parties who do not have lawyers, resulting in a less legally-focused and more interest-based process than the typical business mediation. But when it comes to arbitration, family arbitrators are required to apply Ontario/Canadian law and provide appeal rights, resulting in an arbitration process that is probably more caselaw and statute-focused than a typical business or labour arbitration, which generally interpret contracts.

But in all cases, the process itself is much the same. Parties need to understand their legal rights and their non-legal interests and goals in order to be effective participants in mediation and arbitration. They need to be pre-screened, to varying degrees, so that the mediator or arbitrator can be sure that they are suitable candidates for the process and also that the mediator/arbitrator is the best match for the parties. The mediator is wise to meet privately with the parties or counsel before starting the process, as much of the work is done in pre-mediation and pre-arbitration. And the parties need to understand the pros and cons of hybrid mediation-arbitration processes before they agree to participate.

The ADR options for clients today are diverse, sophisticated, and evolving. It is the lawyer’s job to ensure that the client is accessing the best possible dispute resolution process for that client, and to help the client be as prepared as possible to fully and effectively participate.

Aside from a great excuse to visit a fascinating part of the world, it was a thought-provoking event.

I was fortunate to meet up with some of the greatest innovators in the alternative dispute resolution business; people like Forrest “Woody” Mosten from LA; Neil Denny from the UK; and Toronto’s own Victoria Smith.

But equally inspiring were the many practitioners who were there just to listen and think and discuss ideas.

I participated in intense discussion about how the process needs to develop better methods for screening for power balances including domestic violence; when mediation can and should be used to help parties overcome impasse in the negotiation without having to start all over again with different lawyers; and in what circumstances they can bring in an arbitrator to achieve the same goal.

There was great debate about the role that the “law” might serve in collaborative practice, and how that role can be whatever the parties wish it to be. Which led back to the question of screening; if parties are going to opt out of certain legal rights, it is critical that their lawyers are fully aware of any power imbalances that might be creating coercion around such decisions.

As fully established and accepted world-wide as it is, collaborative law is still an evolving area of practice. Its growth (and growing pains) are exciting to watch if you are committed to exploring ways to provide divorce clients with the best possible dispute resolution process for their circumstances.

Barbara Fidler, one of the founders of Family Solutions. She is a trail blazer, collaborating in a team of professionals to help separated families long before such teamwork became the norm in family dispute resolution. In addition to her years of mediation work, Dr. Fidler has pioneered the use of parenting coordination in Ontario, leading the creation of standards and best practices. She is a prolific researcher and writer on the topic of high conflict families, and is a sought after speaker by the judiciary and the bar.

Heather Swartz is a partner with Agree Inc., one of Toronto’s oldest and best known full-service ADR firms. Her role as supervisor at the Peel Family Mediation Services at the Brampton court has given her invaluable experience with and insight into mediating complex, high-conflict and culturally diverse cases. Heather brings a broad perspective to her work as a family mediator and teacher, as she is also a highly respected mediator, facilitator and trainer in civil and workplace dispute management.

Dr. Barbara Benoliel, President of Preferred Solutions Inc., specializes in the resolution or organizational disputes. She mediates civil and criminal matters, and provides sophisticated dispute resolution processes for individuals and institutions facing complex transitions. Dr. Benoliel is a course developer and leader at York University’s ADR program, as the Schulich School of Business and in the Criminal Justice Department at Walden University in Minnesota. Her current research focus is on the use of restorative justice processes in intimate partner violence.

This three-day practical, intensive workshop focuses on the theory and practice of advanced family mediation. All students have already completed the basic level training as well as the workshop on screening for power imbalances in collaborative law, mediation and arbitration, allowing for advanced-level discussion of practical and ethicial issues. We hope that you might consider joining the workshop if you are ready to study advanced family mediation.

If you don’t keep current with the requirements set out on the website of the Ministry of the Attorney General, you could be issuing unenforceable PC and arbitration decisions.

And that could land you in a lot of trouble with your clients.

There is required basic training and recurring training.

Basic required training is 14 hours of Screening for Power Imbalances, Including Domestic Violence; and 30 Hours of Family Law for those who are not lawyers.

The training that recurs most often is the bi-annual requirement for 10 hours of training, five of which must relate to Screening for Power Imbalances, including Domestic Violence.

But anyone who has not conducted at least ten arbitrations over the past five years must refresh their 14 hour Screening training and, if they are not a lawyer, also their family law training.

These are onerous requirements but essential for ensuring enforceable awards.

The answer is not a simple one.

In order to effectively separate or reconcile both parties need to be on the same page. It is common for one or both parties to have conflicted feelings about their relationship and the decisions they made. This is normal and expected as your relationship begins to change. When a couple begins mediation they need to discuss what their joint goals are; is reconciliation one of them? If it is, the mediation should adjourn so that the parties can attend counseling together. If only one person wants to discuss reconciliation, the issue cannot be mediated.

By the time most people call a mediator, they have already agreed to separate. Many have been to counseling already and feel that they have done all they can to try to salvage the relationship. They are usually ready to move forward in their lives.

Even so, it is not uncommon for one or both to want to keep the “door open” to a possible reconciliation down the road. Although mediation is not couples counselling, the process tends to build the good will, patience, understanding and personal affection that is required to rebuild a broken relationship.

It is rare that parties entering mediation exit the process as a couple again. But it does happen, sometimes when the parties themselves least expect it. Mediation is a fluid and powerful process that can produce unexpected outcomes.

It is in fact an interesting topic! The law was changed about five years ago to make the process more rigorous, including requiring people who want to arbitrate family cases to have certain training.

For example, anyone offering private family arbitration services must either be a lawyer or take at least 30 hours of family law training first.

They must also have at least 14 hours of training in how to identify power imbalances that might impact a person’s ability to participate fully, including addictions, mental illness, patterns of power and control or abuse.

But the people taking this course were just learning about the Arbitration Act. What are the key elements?

Arbitration is a private court. The parties hire a professional they trust to hear the evidence, apply the law and make a decision. People use it because it is confidential; they choose their decision-maker; they can design much of the process; it can be quicker and less expensive than a long court battle; and, if it is combined with mediation, it can result in a settlement.

The most important is the concept of “natural justice”: parties must be given an equal opportunity to make their case and to meet the case made against them. Paraphrasing “The Law of ADR in Canada” by Glaholt and Rotterdam:

Natural justice is “fair play in action”. There are two requirements: that the arbitrator be unbiased; and that every party be given a fair change to present its case and to answer the opponent’s case. Arbitrators must listen fairly to both sides, give both parties a fair opportunity to contradict or correct prejudicial statements, not receive evidence from one party behind the back of the other, and ensure that each party knows the case it has to meet.”

Today we reviewed the legislation and the agreements that must be signed before parties can retain an arbitrator or parenting coordinator. We heard from skilled and experienced arbitrators like Lorne Wolfson and Bob McWhinney.

Tomorrow we will continue to explore the process, its challenges and the many ways one can do it right.