WHAT ABOUT THE UNCIVIL CASES – family law?

Society’s single largest and by far, the most important, social clientele throughout North America keeps getting bigger by the hour. Nearly fifty percent of recently married couples will eventually separate/divorce. Approximately two-thirds of people who divorce will remarry but for them it does not get any easier. Statistics show that nearly 75% of second marriages fail. The statistics say that the incidence is higher in both categories for those simply ‘living together’. Most couples will have had children of their union. Rarely do you hear of a couple, simultaneously and mutually, agree to end their intimate relationship with a smile on their face. This applies equally to heterosexual or gay couples, common law or marriage relationships, opposite or same sex couples. In the result, these couples will wage emotional and economic war on one another ‘until death we do part’. Their weapons of choice will be 2 major bludgeoning issues – Primarily children, if there are children and Secondly money.

Following the breakdown of any relationship the issues on the legal papers center around grounds of divorce (1 year apart, cruelty, adultery), occupation of the home on an interim basis, parenting schedules with the children, support for a spouse and/or children and the division of assets accumulated during the relationship (whether by statute law governing marriages or ‘constructive trust’ if in a marriage like relationship. Usually, one or the other party does not want the union to end. For the one left behind there is a strong and natural dislike for the one leaving or ‘abandoning’ them personally. There is a natural fear that 2 separate families will not live as well as one common family (and they won’t - that’s a given).

Of even greater concern are the unknown long-term effects on the children of divorced parents. In ‘Helping Your Children With Divorce’ Edward Teyber, Ph.D. states “Divorce has become so common that nearly one half of the people marrying in recent years will be divorced within 10 years........Parents should be aware that the turmoil and disruption brought on by Divorce doesn’t just last for a period of weeks or even months.........it often takes as long as two years.....(for the family)......to fully recover a sense of confidence and feel secure with their own identity”.

Without the direction or structure assumed to exist within the traditional nuclear family model, teenagers, especially, are now running in ever-larger unsupervised packs. The traditional adversarial system is simply not equipped to resolve these deeply personal and extremely emotional issues to anyone’s satisfaction. In Civil disputes, normally two litigants attend court to conclude a contentious issue. The Judge makes a decision. Good or bad their case is over. Not so in family law where the parties are constantly returning to court every time there is a perceived change in circumstances. There is an urgent and critical need for an alternative to the adversarial process conducted in family law.

I say that for many reasons. Perhaps the most critical is the emotional harm occasioned to each member of the family. Research suggests that it will affect all later relationships including those developed by our children with ‘new’ parents and their own future partners in life. It is undoubtedly the most emotionally volatile and confrontational situation to arise between two litigants.

One viable alternative is for each party to agree to be referred to a mediator/arbitrator trained to mediate such a settlement under the ADR process. The ADR mediation process is not for everyone. For example, it is not recommended for individuals who are the victims of violence. It will be necessary to repeat this message in this article to avoid confusion.

Mediation can be a positive process in which a neutral third party assists two persons in conflict define the issues between them and by clear communication, guides them toward their very own unique tailor made solution, reduced to a written agreement. The final Agreement is usually arrived at by the parties’ own unique sense of fairness to the broader knowledge of their personal affairs and concerns for each other and their children, if any.

The use of a trained mediator allows for greater flexibility in resolving disputes. For example, when the parties agree to be bound by the decisions of the mediator, as ultimate arbiter, disputes over visitation or access on holidays may be resolved by a telephone conference call. Most disputes are also resolved more contemporaneous with the event. You may agree to employ mediators with differing expertise.

In one example, two professors from the University approached me some 35 years ago well before joint custody was appreciated as a reasonable alternative to sole custody. As they truly wanted what was in the best interests of their children, I was able to successfully mediate a parenting plan with them. The couple had separated and purchased accommodations within a block of each other. The teenage children had keys to both residences and were allowed to see both parents according to the children’s schedule. A few years later, a dispute arose when the parties became involved with second relationships. Being somewhat educated in these matters, the parties agreed to put personal resentments aside. I recommended that they jointly attend at the offices of a child psychiatrist to act as a mediator on that issue. The couple agreed as they thought that the money was better spent on counselling for the children's sake than on lawyer’s fees.

This action constituted trauma prevention. It is only when parents demonstrate their expressed selflessness that the children will be better equipped to cope with their parents separation/divorce. The parties expanded the role of the child psychologist to mediate in all issues relating to the best interests of the children including living arrangements, visitation and holidays. I was able to revise their original Agreement to accommodate the agreed changes and the necessary changes to the child support payments.

A lawyer retained to act for one party and gives legal advice cannot change hats to become a mediator for that client and the other spouse. However, a lawyer with mediation training can greatly facilitate a settlement by employing ADR methods in negotiations.

There are 2 forms of mediation – ‘interest based’ and ‘rights based’ mediation. Most people want to know the bottom-line, “What would the judge decide if we went to court?” Competent Mediators will have some idea as to the consequences or outcome if ultimately the parties decide to proceed to court.

ADR also results in considerable savings to the family income. Most women seeking a separation are under the mistaken impression that their legal costs will be paid for by their husband. In all cases, each party is responsible for their own legal fees and expenses. If successful at trial, court costs are usually awarded to the successful party but this may only amount to 1/5 to 1/3 of your actual legal fees and expenses. In Mediation, the parties usually share the hourly rate of the mediator. Each party retains a vested interest in the process.

Costs become more important as both attempt to maintain separate residences. Neither party wants a significant drop in their standard of living or that of their children. By way of example, the mediator may cost $200/hour at a shared cost of $100 each. By contrast, each party may retain a lawyer at $200/hour. The total outlay of the family income may therefore range from $200/hour to $400/hour. In addition, legal fees attract both 7% GST tax and 7.5% PST tax while the mediator’s fees attract only GST, not any other tax.

At the conclusion of Mediation, a qualified lawyer/mediator may draft the final Separation Agreement for the parties to review with their respective lawyers when seeking independent legal advice. He/she may also prepare the necessary documentation for a Joint Petition for Divorce to be obtained by way of a ‘desk order’.

If you are contemplating a legal separation you are encouraged to seek independent legal advice from a lawyer. Always be mindful that you may encounter difficulties when you try to extricate yourself from the formal legal process initiated by your lawyer. Let’s be honest - many successful litigation lawyers exhibit a typical ‘Type A’ personality and attempt to control all facets of their client’s affairs. The case becomes ‘their case’ and they slip into conversations such as ‘your client did this or your client did that’ as if it were fact as opposed to ‘my client suggests to me that your client may have contributed to this or that’. The objectivity blurs until all distinction is lost. This type of lawyer is reluctant to give up ‘control of the file’ by referring clients to qualified mediators. For economic reasons, they are even reluctant to convene four party meetings between lawyers and the spouses that might bring an end to the litigation, as the fees end when the file closes.

By way of illustration, after my initial interview with a client, I contacted the lawyer for the other side and requested a 4 party meeting to discuss settlement. The issues appeared to be straightforward and there were limited resources available to these salaried clients trying their best to raise their 3 children on a restricted budget. The opposing lawyer was a senior partner with a major downtown law firm whom I had known for many years. I was shocked by his response – ‘Sandy, I can’t authorize a meeting until I have billed my client $5,000.00. I have an overhead to consider’. As a result, we went to Court. My client was successful both in the superior court and in the Court of Appeal on terms far greater than what was originally contemplated. Having lost throughout, the other lawyer, with his payment of $5000.00 or more in hand, now approached me to revert back to our initial discussions of a potential settlement contemplated by my client prior to litigation. Given my client’s success and the legal fees were unnecessarily incurred – the answer was a resounding 'NO WAY'.