Riverdale Mediation is happy to note that over 250 professionals have attended our 2014 Family Dispute Resolution courses! The courses contained LSUC CPD professionalism hours for lawyers and the feedback has been truly amazing.
What our participants are saying:
“I was quite impressed with the material, agenda, and presentation! Great ability to bring clarity to the class and address myths.”
“Loved the course! Best intellectual discussion I’ve had since grad school!”
“Our presenter gave a wonderful and practical approach to negotiation and mediation.”
Over the past year, a growing number of mental health, social work and financial professionals have been attending our courses and we are excited to see the growth of ADR as a diverse profession and practice around Ontario and throughout Canada.
If you want to become an accredited family mediator, we hope you will train with us!
2015 Winter/Spring Training Course Schedule
|Introduction to ADR||Jan. 21-23||3 Days|
|Family Law||Mar. 23-26||4 Days|
|Screening for Family Violence||Apr. 13-15||3 Days|
|Basic Family Mediation and Negotiation||May 7-8, 11-13||5 Days|
Our 2015 Fall Course Schedule will be posted as soon as the dates have been confirmed.
Interested in our courses? Click here to find learn more.
In my last post, I described the results of a national survey of family law lawyers on how they resolve their cases conducted by the Canadian Research Institute for Law and the Family and two noted academics. In a nutshell, lawyers reported that they primarily resolved their cases through negotiation, followed by judicial conferences and mediation, and that the number of cases resolved through arbitration and trial is a fraction of those resolved by non-adversarial means:
In the same survey, we also asked lawyers about how many of the cases they took to mediation resulted in a settlement of all of the issues, a settlement of some of the issues or a settlement of none of the issues. This is what the numbers told us:
These numbers may not look too terribly impressive at first, but they do when you aggregate the rate of full and partial settlement. By region, lawyers said that the proportion of the family law cases they took to mediation that resulted in a full settlement was as follows:
(Frankly, a 50% rate of full settlement is still pretty impressive, considering the amount of money and court resources saved by resolving things short of trial.)
The proportion of cases resulting in a partial settlement was roughly the same, with morecases resulting in a partial settlement than a full settlement in the north, the prairies and Ontario, and less cases resulting in a partial settlement than a full settlement in British Columbia, Quebec and the maritimes:
These numbers are based multiple response data, by the way, and do not sum to 100. However, adding all of the responses together, the proportion of cases resulting in a full settlement or a partial settlement is as follows, and these numbers are astonishing:
Quebec is the outlier here, with 27% of cases taken to mediation resulting in no settlement, but in the territories and other provinces fewer than 20% of cases result in no settlement. The north and British Columbia stand out with the lowest rates of complete failure at 10 and 11% respectively.
It is important to remember that these numbers reflect only those cases counsel took to mediation, and not every case is suitable for mediation. In fact, according to our survey lawyers in British Columbia and Ontario took about a quarter of their files to mediation compared to lawyers in the north and the maritimes who took only a tenth of their files to mediation. However, these numbers do suggest that when mediation is attempted, it is fully or partially successful four times out of five.
The success of mediation as a dispute resolution mechanism is heartening — the resolution of family law disputes through the courts has always struck me as bordering upon the bizarre — however mediation generally comes at a cost, whereas litigating in the provincial court is usually free. Hence the extraordinary participation rates of litigants without counsel in our provincial courts.
This situation strikes me as an intrinsically wrong-headed choice of priorities in the allocation of public dollars; I fail to understand why we continue to direct 95% of our public funding toward the dispute resolution mechanism that is the most destructive and least efficient, and I wonder if it might not be best if legal aid programs channelled their money into providing people with mediators to mediate rather than lawyers to litigate. Even if only 10% of family law disputes resulted in settlement, that would represent significant savings to the justice system in terms of the costs of legal aid counsel, court administration time and materiel, sheriff’s time and judicial resources, never mind the long-term benefits to the parties themselves and to their children.
A note about the data
The greatest number of responses to this question were received from Alberta (about 30 on average), British Columbia (about 34) and Ontario (about 13); all other provinces and territories yielded 10 or fewer responses. As a result, I have lumped the data together by region in an effort to produce more meaningful numbers, giving responses as follows:
The survey received no responses from judges and lawyers practicing in Nunavut or Prince Edward Island.
When my Advanced Mediation and Negotiation course started at Riverdale Mediation Hilary Linton took to the podium and asked all the attendees what their expectations were from the course. We took turns going around the room and we all had similar answers that were based around an increased knowledge in the practical work in mediation. Sometimes the question was hard to answer because we didn’t know what we didn’t know. I was last to respond and my answer was, “I want to learn three new things”. Based on the fact that I didn’t know what I didn’t know; I was keen to keep an open mind to learn something new. I just didn’t know what that was yet.
So, what three things did I learn in my Advanced Mediation and Negotiation course that would strengthen my practice?
First: I learnt that there are many talented mediators with different levels of knowledge about an array of topics. Some came from a child-focused background and truly understood the psychology of a child’s development at various growth stages. Others focused their practice on the properties issues surrounding divorce and co-mediated the family aspects with other mediators who focused on the relationships between the parents and their children. Each respective mediator brought their wisdom to their mediations. It clarified, for me, that in the interest of being the ‘neutral’ in the room it didn’t mean you had to compromise other skills that you brought to the table. Asking the right questions at the right time or being known for your specialty will bring you clients that are tailored to your service offering.
Two: Be intuitive and open to explore. Sometimes the reason for impasse is not surface level. Clearly, some people will engage over assets that can hold up the process for multiple sessions. Using tools available to mediators such as caucus, bringing in other professionals with a particular specialty or simply asking the right question at the right time can bring forth the self-realization the client needs to move forward. It really isn’t about that precious piece of furniture after all.
Three: Mediators can and should divide the substantive issues from the procedural issues. There might be times that shuttle mediation is appropriate. There might be times when co-mediation is an alternative. Each client’s separation and divorce are different. Understanding how the procedural issues can affect the outcome can provide clarity and a smoother resolution process.
I left the course feeling that I had made some good professional friends who made me feel a lot less alone in my path to understanding and employing excellent mediation tools to ensure I do the best job for my clients. If I were to add a fourth lesson it would be that we are always learning from not only each other but from our client’s and our experiences. It was nice to share those with each other in the classroom whether they were students, such as myself, or the knowledgeable facilitators who had so much to share.
In Hays’ original work, she spoke of “intensive mothering” as primarily being conducted by mothers, centered on children’s needs with methods informed by experts, which are labour-intensive and costly simply because children are entitled to this maternal investment. Was I one of those? Could I be a bit of both, sometimes one then the other? Was I one type of mother with one of my children and another with the other? Could I have characteristics of each and not yet be either? I also noted from my research on paternal involvement and maternal employment that there were fathers who were intensively involved with their children. Who were these men and was it the same type of intensive parenting as the mothers displayed?
Simultaneously with these thoughts, as a researcher in the area of combining motherhood with employment, I reflected on how the Early Childhood literature was incompatible with the motherhood and Feminist literatures. In other words, what was good for the child didn’t seem to work so well for the mother and the reverse. How to reconcile this dichotomy? I certainly believed in the importance of attachment in a child’s life but how much was too much and what impact would it have on the mothers, as well as their children, through the lifespan?
I decided that I needed to officially speculate on these issues pertaining to intensive mothering and thus this edited collection was born.
The book is divided into three sections: Understanding and Assessing Intensive Mothering; Intensive Mothering Today; and Intensive Mothering: Staying, Leaving or Changing. The first section draws on academic research and theory in the area of intensive mothering to help further understand the phenomenon. The second section explores the practical implications of intensive mothering in various scenarios and the last section reflects upon the future implications of intensive mothering, and the possible adjustments or alternatives to it. This collection of essays has been written by academics from various disciplines, from different parts of the world, at different points in their careers. It will clarify what intensive mothering is all about, as well as clarify why it still persists in modern times.
I believe that this collection will be a helpful addition to the field of parenting and especially so for family mediators, who are working closely with parents, who are trying to do their best for their children under challenging circumstances. This collection will provide an additional resource to the field and further clarify what intensive parenting looks like, as well as suggest potential alternatives to it.
Up to 8 hours of mediation is available, at subsidized rates, for all issues— parenting, support, property division. The statistics show high rates of agreement and client satisfaction.
But some feel that voluntary mediation is not enough and that it should be made mandatory. In particular, a recent report written by a highly respected group of judges and other stakeholders has recently recommended mandatory “Consensual Dispute Resolution”. We have spoken out against this idea before.
One of the challenges with mandatory mediation is that it removes voluntary participation. One of the fundamental elements of successful dispute resolution. Also, it puts victims of violence in a no-win situation by forcing them either to publicly disclose the violence in a process that may not be sufficiently resourced to keep them safe– which could put victims and children at risk– or to participate in a potentially dangerous process without disclosing it, for fear of the consequences of disclosure.
There is a dearth of research indicating that mandatory mediation is better than the alternative that we believe to be safer, less expensive and more effective: mandatory intake for mediation with voluntary participation thereafter. (subject to the discretion of the mediator on issues of power, control and safety.)
A recent study of a three year mandatory (free) family mediation project for parenting disputes in North Dakota provides some insight into what is needed for such a program to achieve success:
It is fair to assume that very significant resources were devoted to this project.
The settlement rate reported for parenting disputes is 50% full agreement and 26% partial agreement, with 10% of these rescinding. These are lower settlement rates than those achieved in our voluntary mediation program in Ontario. And although the satisfaction rates are very high (87% reported overall satisfaction– similar to the satisfaction results we see in Ontario) only 65% of participants are completing the satisfaction surveys, calling into question the validity of the high satisfaction ratings.
The other troubling aspect of the program is the extremely low number of cases–as reported by the mediators– with a power imbalance that affected the outcome. Only 7% of all cases were considered to have such an imbalance of negotiation power— which seems unrealistically low. Further, the mediators are asked to describe the indicia of domestic violence and the steps they took to address the issue. The answers to this question are troubling, as it appears that many mediations are proceeding without extensive safety planning, despite the report’s claim that the mediators possess sophisticated skills in this area. The information provided by the mediators does not necessarily support such a conclusion.
The good news for the North Dakota courts is that the time between filing and disposition of cases has been reduced by at least 25%, and the percentage of cases that come back to court has dropped by about 60%. These are encouraging stats for today’s overburdened and underfunded family courts. Further, participants by and large genuinely valued the process and gained more from it than they expected. But it must be remembered that the vast majority of participants in this study had legal counsel. In most family courts, the unrepresented greatly outnumber the represented.
There is a lot of work to be done to design an effective and safe family mediation program. It is suggested that the best ones will include mandatory judicial referral to confidential mediation intakes, with extensive screening and safety planning features, followed by voluntary mediation that is carefully designed, and delivered by highly trained specialist mediators, and well funded access to legal support. To do this well requires significant and dedicated resources. The North Dakota project is well on its way towards meeting these objectives. But in Ontario, we too are well on our way to what we propose is a better process. Judges in Ontario have the authority under the Family Law Rules to order parties to a free mediation intake. We hope that more judges start using this Rule, and that more lawyers and parties start asking them to order mediation intake as well.