Self represented litigants: Mediation: Is there hope?

travelbikeThe National Self Represented Litigants Project just published an “Open Letter to the Canadian Judiciary”. It is a thoughtful and important read.

The self-representing writers plead for greater understanding of their plight, and for more tolerance, compassion and assistance.

This letter serves as a reminder that there are some under-utilized services to help those who cannot afford lawyers. Anyone in Ontario can access free mediation intakes with a lawyer or mental health professional mediator, and judges can order this. In- court mediation is free across the province. Custody, support, financial disclosure, property division are all being competently mediated by our family lawyer and mental health professional-mediators every day– for fees as low as $5 an hour. Those with lawyers can use the service too.

Here is our comment on the letter:

This is a very thoughtful open letter and I hope everyone “in the system” reads it.

The demands on court staff, judges, lawyers and mediators are growing, not only because family law has become so complicated, but also because — as this open letter evidences– there are many more unrepresented parties who have greater needs than represented parties. This challenges us all to do better. And just like the SRLs, no one in the system is always at their best. It is a very stressful time for everyone.

I hope we all will have more empathy for everyone: for the SRLs of course, who are very vulnerable as this letter notes; and also for their spouses who may not feel capable of self representing and who must pay a lawyer. Litigating with an SRL can often feel unfair to the party paying the lawyer. I hope for more empathy for the judges who are in most cases going above and beyond to try to help. The adversarial court system is not designed for the numbers of SRLs that we have, and a great deal of judicial, lawyer and SRL education is badly needed to come up with a more coherent understanding of the challenges and potential solutions we are all grappling with.

We are lucky as family mediation service providers to offer unrepresented parties a free or highly subsidized opportunity to negotiate in a process that is balanced, non-judging, respectful and supportive. Legal Aid Ontario now funds certificates for mediation and for negotiated agreements; and the Ontario government provides Family Court Support Workers to further support vulnerable parties who are often not represented by counsel. Each court has an Information & Referral Coordinator whose role includes supporting SRLs as they navigate the system. There are some terrific resources in Ontario.

We find that most unrepresented parties have very positive experiences in mediation, particularly now with the enhanced LAO support, and also with more of our mediators speaking different languages and with both legal and mental health backgrounds. It is so much easier for mediators to understand and address the stresses facing SRLs; it is our job to be non-judging and supportive of the needs of each party. Judges are– in fairness– hired to judge. As this open letter explains, SRLs are not always at their best in court. In a “judging” system, that is definitely a disadvantage.

I hope that more SRLs will take advantage of the deeply subsidized family mediation services— including FREE same day onsite mediation in all Ontario family courts. It is far better designed to meet the needs of SRLs. And remember– under the Family Law Rules you can ask the judge to order the parties to a free and confidential intake meeting with a highly skilled and qualified mediator, and possibly qualify for legal advice through duty counsel, advice counsel or the new LAO legal advice certificates. More SRLs should be asking for this remedy.

Posted in Children, Custody of children, Domestic Violence, Family Law, First Nations, Lawyers, Mediation, Negotiation, Parenting Coordination, Separation & Divorce | Tagged , , , , , , , , , , , , , , , , | Leave a comment

New Student Start-Up Addresses Access to Legal Information

legal informationA recent story in The Globe and Mail profiles a remarkable law student named Sam Michaels from York University’s Osgoode Hall. Michaels is the Founder and Director of a legal start-up that addresses a pressing need: affordable access to legal information for Canadians.

The venture, called the Legal Information Network of Canada (L.I.N.C.), is a web service which connects individuals and businesses to relevant legal information, resources and services. For $15, clients can submit a legal question to L.I.N.C. and receive a custom online report with legal information and referrals. As the client base grows, L.I.N.C. aims to reduce response time to a mere 30 minutes per legal question.

L.I.N.C.’s services could be an important resource for Canadians who are seeking legal information, but who don’t need to retain the ongoing services of a lawyer, or who simply don’t know where to begin. Rather than offering high-end, expensive legal services that are unaffordable for many people, or acting as a charity providing pro bono legal services for low-income individuals, L.I.N.C. aims to tap into an underserved market: middle-income earners with everyday legal questions.

L.I.N.C. provides the following services:

  • Relevant information regarding the laws and their meaning
  • Help finding the right court or tribunal
  • Directory of legal aid clinics
  • Referrals to lawyers
  • Referrals to relevant legal services
  • Direction and consultation regarding the landscape of the legal system

Clients can submit their legal questions to L.I.N.C. on the organization’s website and receive a response within 24 hours:

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The Role of Lawyers in “The Perfect Mediation”

Tips for Lawyers When Working with a Mediator

In his column in the latest issue of The Professional Family Mediator, Chip Rose writes about the idea of “The Perfect Mediation.”

As a highly experienced mediator, Mr. Rose acknowledges that a “perfect” mediation is obviously very subjective. But, relating the story of a recent case he mediated, Rose illustrates what a mediation can look like when everyone comes prepared to collaborate – and the result is as close to perfect as a mediator can ask for.

The key to mediation perfection? In the case Rose details, the main ingredient seems to be both parties’ counsel exhibiting a “skill and willingness to collaborate,” which, when coupled with some case-specific factors and the mediation process choices, led to a speedy and collaborative solution. And this in a parenting case that Rose describes as originally having “all the hallmarks of an impasse.”

Rose’s case study underscores the important role of lawyers in facilitating a successful mediation process and generating durable solutions for clients. Here at Riverdale, if clients have lawyers, we speak with them directly to discuss their role in the process, as well as their views and preferences. Counsel who come prepared to collaborate and advocate, rather than cross-examine or litigate, are instrumental to successful mediations.

In order to assist lawyers in making the most of the mediation process for their clients, we’ve published a list of “10 Tips for Lawyers When Working with a Mediator.” The following factors create an environment that favours settlement at or following mediation:

10 Tips for Lawyers When Working with a Mediator

Image transcript:

10 Tips for Lawyers When Working with a Mediator

1. Willing parties and counsel. The parties and their lawyers come with an open mind, willing to suspend their judgement of the other for the purpose of finding a mutually acceptable solution.

2. Courteous, focused parties and counsel. Parties and counsel are always courteous to and respectful of the other side, respectful of the maxim: “Be hard on the problem, soft on the person.”.

3. Prepared parties and counsel. The parties and their counsel have thought through, before the mediation, what they are willing to accept and what the other side might be looking for in a settlement.

4. Good communication and disclosure. Parties listen to each other, speak with each other and respond directly to the concerns raised by the other. All information and documents needed by each party in order to make informed decisions are available.

5. Suppression of ego. Parties are willing to offer empathy and apologies to the other if it is apparent that this is what is needed to help make a settlement happen.

6. Key players are present. All individuals who will be expected by the other party to be present are in fact present. Any person who has the answers to questions raised by the other party should be there to enhance the likelihood of reaching “closure”.

7. Parties and counsel have a good handle on the facts. Lawyers and clients, together, have reviewed all relevant documents before the mediation.

8. No surprises. Neither party comes into mediation with undisclosed surveillance of the other side. This tactic effectively destroys any perception of good faith. For mediation to be successful, each party must bring to the table, before the meeting, all relevant information. Surveillance is the kind of information that ought to be disclosed prior to the mediation. Such information can be unreliable or explained; failing to disclose its existence prior to mediation creates an uneven playing field going into the mediation. A party entering mediation with undisclosed surveillance will use the process to “set up” the other party rather than negotiate in good faith. This inevitably results in a wasted mediation and litigants who are even more polarized than before the mediation.

9. The process is used as intended. Neither counsel nor the parties use mediation as an opportunity to cross examine a party or potential witness. Mediation is not the place for trying out cross examination skills. This technique only serves to anger and polarize parties further. Any opportunities for resolution will be lost, not only at the mediation but for some time after. Counsel who cross examine at mediation may do their own clients a considerable dis-service.

10. The opportunity is maximized. Parties and counsel conduct as much of the mediation as possible in the same room. There is a temptation to stay in separate rooms and have the mediator go between the parties. Although this is an important part of a good negotiation process, opportunities are lost if the parties do not work through the options for settlement together.

Following these few basic rules will go a long way towards making the best of mandatory mediation.

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In San Diego this October: The Riverdale Mediation Team!

APFM conferenceThis October 16-19, part of the Riverdale team will be keeping warm in sunny San Diego. Riverdale associates Elizabeth Hyde and Christine Kim are heading to California to present at the Academy of Professional Family Mediators (APFM) Annual Conference: Casting a Wider Net in the Ocean of Family Mediation.

On October 16, Elizabeth and Christine will be teaching one of the pre-conference institutes, “Screening for Power Imbalances and Family Violence.” Building on participants’ understanding and skills, this program fills a gap between mediation training and practice. Effective resolution of complex conflict requires a deeper understanding of risk, negotiation power and drivers of conflict. Using role plays, simulations, demonstrations and discussion, this program will challenge participants to rethink their practices and move to the next level as reflective mediators.

The next day, Elizabeth and Christine will lead a workshop on “The Cultural Competency Toolbox.” Meant for beginning mediators, this workshop will explore the questions: What skills and knowledge we do need to be Culturally Competent? What’s in our toolbox? The increased diversity of families involved in mediation requires mediators to examine how they are responding to the diverse needs of the families they serve. Although cultural sensitivity has been steadily emerging as a prominent framework for the past 20 years, less attention has focused on the complexity of working with culturally diverse families in the context of separation and divorce. For mediators, the ability to recognize cultural influences may facilitate a better process and outcome for all the parties involved. The session will focus on examining different cultural orientations, including those of the mediator, and how these influences may impact process, choice and design in mediation.

Besides presenting at two engaging sessions of their own, our associates are excited to attend the sessions of many of the top presenters in the field. Stay tuned for further blog posts about some of the other impressive sessions.

You can register for the APFM Conference online at

Click here for the conference brochure.

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Free Resources: Tax Consequences of Separation and Divorce

Tax Consequences of SeparationThey say that two things in life are inevitable: death… and taxes. Filing your taxes is seldom a straightforward process, and couples going through separation and divorce face potentially complex tax implications.

The Canadian Bar Association Family Law Section has released a helpful, free resource for those navigating this difficult time. Tax Matters Toolkit: Separation and Divorce is a quick but thorough overview to working with the tax system and important Canadian Revenue Agency (CRA) forms for separation and divorce.

The Toolkit includes information such as: thinking about the tax consequences of separation and divorce; keeping documentation such as receipts for tax purposes; getting advice from family law lawyers, income tax specialists, and accountants; and definitions of key terms. There are also guides for filling out important CRA forms related to changes in marital status, support payments, and RRSPs, RRIFs, and SPPs.

The CBA’s new Toolkit is a valuable resource that we encourage all dispute resolution professionals to recommend to their clients. We certainly will!

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Upcoming Course: Arbitration Law for Parenting Coordinators

Arbitration LawParenting Coordination (PC) is one of the most daunting fields in family law. It is also one of the fastest growing. In Ontario, PC practice operates in a bit of a void as there is no legislation governing the practice and no Ontario-based standards of practice. Other than minimal direction in the Arbitration Act and the Family Law Act, those doing this important and challenging work are working in an emerging field with relatively little direction.

Although many skilled PCs are able to assist families without having to arbitrate, a solid understanding of Ontario’s Arbitration law and practice is essential to effective and competent PC practice.

This September 18-19, Riverdale will be offering “Arbitration Law for Parenting Coordinators.” This course, designed specifically for PCs and other dispute resolution professionals without legal backgrounds, provides the essential knowledge necessary required to conduct a simple arbitration hearing.

The course is a comprehensive, practical workshop designed to familiarize DR professionals with the fundamentals of family arbitration law and process, using case studies, role plays, guest speakers and class discussion.

Participants will learn:

  • Overview of legislation & regulation
  • Pre-arbitration process & Agreements
  • Motions
  • Screening for power imbalances
  • Arbitrations with self-represented parties
  • Hearing options
  • Evidence basics: witnesses, documents, hearsay, experts and reports, use of reporter
  • Taking notes and keeping a record
  • Dealing with objections and irregularities
  • Ensuring and documenting procedural fairness
  • Meaning of bias and impartiality
  • Writing partial and final awards
  • Managing time and costs for the parties
  • Fees and retainers
  • Appeals and reviews
  • Enforcement of awards

Past participants have been highly impressed with the course, saying:

  • “Excellent workshop, would attend a sequel!”
  • “Excellent presentation and discussion, clear information.”

Register now for “Arbitration Law for Parenting Coordinators” to take the next step towards practicing arbitration. Registration closes September 11th. See the course page for details and flyer.

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