Explore Your Options in Dispute Resolution

With so many options, how does one choose the best dispute resolution process?

This blog series will attempt to identify and define as many of the options as possible. This week’s focus will be on the Do-it-Yourself  option.


The “SRL” (self-represented litigant) movement has grown in the past years, largely due to the growing sense that the legal system, and particularly the use of family lawyers, has become inaccessible to many. Dr. Julie Macfarlane of the University of Windsor has spearheaded a public movement to draw attention to the hardships of the self-represented. This has highlighted the challenges of acting for yourself during a separation or divorce proceeding or negotiation. There are  many resources that are available to assist those who are navigating a separation or divorce without legal assistance. Courts are increasingly responsive to the needs of the unrepresented as well, as are governments in their funding choices. Some of the resources include:

Family Law Information Centres

FLICs are available in all Ontario courthouses. FLICS, as they are known, employ court staff and information officers to help parties complete forms, access legal advice, and information, find useful services and understand their dispute resolution options.For more information, follow this link.

Mandatory Information Programmes

Everyone in Ontario who has started a family court action, or is served with one, must attend an information programme but these sessions are open to anyone interested, whether they are in court or not. Presenters cover the wide range of services available to those experiencing separation, including out of court processes like mediation and collaborative negotiation; and they also help prepare parties for what to expect during a court process. Visit this page for more detailed information.

Free and subsidized family mediation

In all Ontario courts, same-day family mediation is free for anyone in court that day. And for anyone in Ontario, whether they have a court case or not,  family mediation is subsidized, often extensively so, for anyone who wishes to use the service. For more information, see the Ministry of the Attorney General’s website and our video here (link to HL video)

Access to advice and duty counsel

All courts have on-staff legal aid lawyers who provide free legal advice.There are income caps, and also limits on the kinds of legal advice such lawyers may provide. For more information, read this guide.

Family court support workers

The Ontario government funds supportive services in all courts for victims of domestic violence and abuse. Such services can help victims access legal advice, counselling, and other assistance. For more information, visit the Ministry of the Attorney General’s website.

Legal Aid Family Mediation Advice and Separation Agreement Certificates

Legal Aid Ontario also funds up to 6hours of legal advice for people wanting to work with a mediator and 10 hours of legal advice parties working with lawyers to negotiate a separation agreement, again subject to income requirements. For more information, visit legalaid.on.ca

Office of the Children’s Lawyer (OCL):

Under the International Convention on the Rights of the Child, to which Canada is a signatory, children have the right to an age-appropriate role in the resolution of matters that affect them The OCL exists to represent the rights of children in their parents’ litigation, and costs nothing. For more information, read this page about the OCL.

Dispute Resolution Officers:

In many courts, senior members of the family law bar act as court-appointed officers to help parties resolve certain disputes. For more information, follow this link to the Justice Canada website.

Do-it-yourself guides

There are many guides, books, and online resources to help people navigating their own divorce or separation agreement. One such resource is mysupportcalculator.ca, which helps parties assess their child and spousal support rights and obligations. All such do-it-yourself resources have limits and are generally not considered a reliable substitute for legal advice.

For more information please refer to the following resources:

Read Steps to a Family Law Case from CLEO (Community Legal Education Ontario)

Watch Divorce and Separation: Where to Start from Justice Canada

 

Posted in Children, Collaborative Practice, Family Law, Mediation, Negotiation, Parenting Coordination, Separation & Divorce | Tagged , , , , , , , , , , , , , , , , , , , | Leave a comment

Professionalism in an Adversarial Legal World

Adversarial - HL

As a mediator, mediation and negotiation trainer, and provider of court-connected dispute resolution services, issues of professionalism and professional ethics arise often in my work.

Although professionalism cross all legal and dispute resolution cultures and contexts, they may arise more often in the family law context, where the drivers of conflict are often personal and historical. Lawyers, dispute resolution professionals and service providers can be drawn into the emotionality and values-based conflicts that tend to dominate much of our work.

Deanne Sowter, research fellow at the Winkler Institute for Dispute Resolution, recently conducted a series of round-table discussions (in which I participated) that have resulted in an excellent series of posts on the topic. She finds that, although different FDR professionals are driven by different procedural norms, which in turn define their understandings of legal and professional ethics, there is a consistent acknowledgment that “family law ADR requires a higher ethical standard.”

The first step is for each of us to understand our own personal moral code, because that is the compass by which we will interpret the various Rules and Standards of Professional Conduct that guide us. For example, I recently helped draft the Standards of Practice for FDR Professionals for Ontario’s Family Dispute Resolution Institute of Ontario. In crafting those standards, there is no question that the values of our drafting team informed our work.

The legal profession has earned a bad reputation for adversarial negotiation. Indeed, in the family law context, some research suggests that family lawyers were, at one time, considered more adversarial than other kinds of lawyers. With the growth in popularity and influence of the collaborative law movement, and the exponential increase in numbers of family lawyers taking mediation training, it is arguable that family lawyers are now the least adversarial of their kind. This is not necessarily a good thing.

The training we take, the processes we offer, our life experiences and our own personalities together determine our standards of ethics relating to negotiation. And, presumably, the mandate to “do no harm” guides us all, at an elementary level, in all our choices, including the manner in which we interpret the Law Society’s still-mandatory duty of zealous advocacy for our clients.

In the video, I suggest that adversarialism is not, in itself, an evil. Indeed, in order to do no harm, it is sometimes essential. Ethical advocacy requires an assessment of the appropriate approach for each case and each client, and understanding what Fisher and Ury coined as each client’s “BATNA” in their seminal work “Getting to Yes”. Sometimes, an adversarial approach is exactly what is required for effective advocacy for a client. Somehow, we have come to conflate “adversarial advocacy” with “unethical advocacy”.

It is true that many of the tactics used in adversarial, competitive bargaining can seem, and be, unethical, in that they are designed to take advantage of the other party, create misunderstandings, and rely on deception of varying degrees. But competitive negotiation need not be unethical if those engaging in it are direct and transparent about the approach they are taking and avoid deceptive tactics.

I do a lot of teaching in law schools, and have coached in and judged many a negotiation competition. I find that today’s law students understand interest-based negation quite well; but they are distinctly uncomfortable with competitive bargaining, even when the facts suggest that it is the most appropriate approach for their client. It seems to me that we need to discuss these ideas much more with our students to help them understand there is a difference between adversarialism and unethical conduct.

_____________________________________

Posted in Family Law, Lawyers, Mediation | Tagged , , , , , , , , , | Leave a comment

Safety Planning in Mediation: Part 3

The steps that family/collaborative lawyers, mediators and arbitrators can take, based on informed screening to enhance client safety are explained in part 3 of this blog series. Read more about safety planning in high-risk family law cases in Part 1 and Part 2 of the series.


21. Discuss with clients the reasons for the instructions or settlement positions they give. a client may be prepared to settle for an amount that you think is unreasonable because that is what they believe will keep them safe.

22. Always take very seriously client perceptions of danger. Research shows that a client’s fear of being killed is a reliable predictor of his or her murder.

23. Know the steps to take and referrals to make if a client hints at suicidal thoughts or plans. have a resource sheet to provide to clients who are suicidal, including referrals to local agencies. Take client disclosures of suicidal thoughts or acts very seriously. take client disclosures of the other party;’s suicidal thoughts, threats or acts very seriously.

24. Know your obligations under the Rules of Professional Conduct to report any information suggesting that a person is at risk of imminent harm. (Rule 3.3-3 of the Amended Rules of Professional Conduct.)

25. Know your obligations as a mediator, arbitrator or PC under s.72 of the Child and Family Services Act to report a child at risk of harm.

26. Take appropriate steps to keep yourself safe. there are too many cases where family lawyers, mediators, and their clients have been harmed or killed and where little or no screening/safety planning was done.

27. Pay attention to and take seriously the fears, intuitions and instincts of family and friends.

28. Support both parties. If you have a concern that a party is depressed, address that concern in a supportive and positive way and seek undertaking that clients will obtain counseling and other supports. Design your process with the safety and well-being of both parties and their children in mind and do not proceed until you are satisfied that your and/or your client’s concerns have been appropriately addressed.

29. Educate clients about the harmful impact that adversarial court processes can have. When they are providing instructions to take procedural steps, ensure that you have helped them contemplate, identify and assess risks. Ask clients to consider and share with you their safety plan for the most dangerous times, including when clients are retaining counsel, having lawyer meetings, serving proceedings, four-way meetings, meditation, an arbitration hearing and the time leading up to and immediately following a court hearing.


This article is excerpted from “Safety Planning in Family Law Cases: An Emerging Duty of Care for Lawyers?” by Hilary Linton

Posted in Domestic Violence, Family Law, Lawyers, Mediation, Negotiation, Separation & Divorce | Tagged , , , , , , , , , , , , , , , , , , , | Leave a comment

Safety Planning in Family Law : Part 2

The ways in which family negotiations are done is in the midst of a major shift. Family law professionals must be prepared to use a variety of tools to ensure a safe and equitable process. Part 2 of this blog series suggests more tips for safety planning in high-risk cases.


11.Ensure that the confidentiality of safety disclosures, in all processes, will be respected by the process and the person providing the process. If confidentiality of disclosures of fear, risk, violence, etc., is not maintained, clients and children could be put at risk of harm. Ensure that any mediator, parenting coordinator and mediator-arbitrator follows best practices in screening, confidentiality and safety planning.

12.Be familiar with basic safety planning guides. The services in your community for abused men and women will have safety planning resources. All family law professionals should have copies of such resources in their offices and available to clients. One excellent general resource is “Safety Planning Across Culture and Community”, published by Ending Violence Association of BC. https://www.endinqviolence.orq/files/uploads/ure and Community Manual
EVA BC Dec 9 2013.pdf

13.Be familiar with the many risk assessment resources available to victims of violence, to help them (and their lawyers) better understand the potential risk they (and their families, and/or their spouses) may be facing. For example, www.dangerassessment.org.

14.Understand different types of violence, how to identify each, and what the implications are of such differentiated assessments. The article by Joan Kelly and Michael Johnson is an excellent resource for this purpose.

15.Be familiar with the various screening tools including their limitations.

16.Secure a working relationship with the Family Court Support Workers in your jurisdiction. Know when to refer a client or prospective client for support or counselling before, during and after a family dispute resolution process.

17.Use the court connected onsite mediators whenever possible to meet with and screen clients where there are any concerns- Use the resources in the Family Law Information Centres in all courts, including the knowledgeable Information and Referral Coordinators.

18.Understand the link between violations (however minor) of bail terms (however seemingly minor the assault) and risk of escalated assault or murder, and have a working relationship with a good criminal lawyer to whom victim clients can be referred for advice about violations of bail and restraining orders.

19.Be familiar with the resources to support men, particularly if the man appear depressed, isolated, unable to take responsibility, is blaming and critical and unsupported.

20.Discuss your risk assessment directly with the client. If you are mediator, mediator-arbitrator or parenting coordinator, discuss your concerns for each party with each party, ensuring that you maintain the confidentiality of all that they both told you and yet are still supportive of the needs and concerns that each disclosed to you in confidence. Help clients better assess their own risks and better engage in their own safety planning.


This article is excerpted from “Safety Planning in Family Law Cases: An Emerging Duty of Care for Lawyers?” by Hilary Linton

 

 

 

Posted in Mediation | Leave a comment

Some Suggested Steps for Safety Planning in Potentially High Risk Cases

The following excerpt from “Safety Planning in Family Law Cases: An Emerging Duty of Care for Lawyers?” is part 1 of a 3 part series which offers some helpful suggestions for safety planning and screening in high-risk cases.


 

  1. Take all clients through extensive screening interviews before choosing a dispute resolution process and a professional to provide that process. Ensure that best screening practices are followed in any mediation, arbitration or med-arb process in which you are participating. Become informed about those best practices. Take screening seriously.
  1. Do not make assumptions about the risk involved in any case, no matter who the parties are, what their incomes are, what the issues being negotiated are, and who their lawyers are. High risk cases cut across all personal and professional demographics.
  1. Mediate whenever possible and appropriate, using a mediator who follows the screening protocols and Abuse Policy of the Ontario Association of Family Mediation. (See Wainwright v Wainwright for judicial comment on best screening practices in family mediation and arbitration.32) If mediation is not an option because the parties need more support, consider collaborative process. Adversarial lawyering and approaches should be avoided.
  1. Never let clients be alone together to discuss settlement options. Not during a mediation, negotiation or four-way meeting, even if they ask to be left alone. Never assume that you have accurately assessed risk and do not take unnecessary risks with your clients’ safety. Risk assessment is hard to get right, and even the most seasoned professionals make mistakes. Err on the side of caution when you can.
  1. Arrange, as a rule, to have the vulnerable person arrive last for mediations, meetings or at court, and have the potentially dangerous person arrive first. Have the vulnerable person leave first, holding the dangerous person back long enough for the first party to be assured that they will not be followed.
  1. Ask clients what process will make them feel safe and empowered. Discuss process options with clients from a safety planning, power balance perspective. Elicit from clients all concerns they may have about a process. Be adaptable in how you practice and be prepared to require accommodations for clients in all family dispute resolution processes. If you cannot address a client’s concerns, recommend another process.
  1. Have separate waiting areas and as a rule do not permit parties to wait alone together at any time, either for mediation, arbitration, four-way meetings or at court.
  1. If you are using shuttle mediation, ensure that clients’ caucus rooms are far apart and that neither party knows what room the other is in.
  1. Train staff and colleagues to understand the basics of risk and safety planning, and have them familiar with your standard safety protocols at the office.
  1. Create a safe environment for clients to disclose their fears and concerns to you as lawyer, mediator, parenting coordinator or mediator-arbitrator.

    Excerpt from  “Safety Planning in Family Law Cases: An Emerging Duty of Care for Lawyers?” by Hilary Linton

 

Posted in Domestic Violence, Family Law, Lawyers, Mediation, Negotiation, Separation & Divorce, Training | Leave a comment

Transforming Family Law: Legal Education and Transgender Parents

 

FDRIO’s recent Unconference on May 4th introduced legal professionals to the perspective of LGBTQ+ parents in family law. Guest speakers touched on struggles faced by LGBTQ+ families in family law, including; fertility and what that means for coordinating parent access, child custody and parent decision making. With transgender parents, one or both parents might not be biologically connected to the child. Many transgender parents who are also part of LGBTQ+ community often value non -traditional family structures of more than two parents. These unique issues to transgender parents raise complex family law concerns. Often transgender parents also fear accessing legal services due to their transition. This is why LGBTQ+ safe spaces for legal advice, and guidelines for successful transgender allyship in professional legal practice are important.  

As we marked International Day Against Homophobia and Transphobia on May 17th, read about new developments in family law for transgender parents.


An exciting program is available in Ontario to help transgender parents and children. The Trans Family Law Project helps keep transgender parents and their kids together, by providing family law information to transgender people province-wide.

The project, led by Dana Baitz, is also helping legal professionals become better prepared to offer family law services to transgender parents. The Trans Family Law Project has made resources for parents and legal professionals that are easily accessible. Their parents’ tip sheet gives basic family law information for transgender parents and their families. The Community Fact Sheet details facts and legal considerations that relate to transgender parents in Ontario. The fact sheet also includes a list of transgender friendly resources in Ontario. Legal professionals can gain helpful tips for representing transgender clients by referring to the Legal Backgrounder for on Trans Parents and Family Law in Ontario.

As part of the Trans Family Law Project, two sets of webinars are available through their website. The community webinars are made for transgender parents, transgender community members, and service providers to learn about family law.  Another webinar is tailored to lawyers, mediators, and other professionals in family law to learn specific legal strategies in order to better serve transgender parents.

The project looks like a promising foundation for providing essential services to transgender parents. As we look forward, lawyers, mediators and other service providers will need to be knowledgeable as they encounter more transgender parents with family law challenges.

Posted in Culture, Diversity, Family Law, Lawyers, Parenting Coordination, Separation & Divorce | Tagged , , , , , , , , , | Leave a comment