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THE BETTER AND BEST WAYS

Posted on November 19, 2012

Since prehistoric times the concept of battle as a method of resolving disputes has permeated our culture.  Battle still exists in our judicial system (albeit in a more refined form) – nowhere more painfully than family law disputes.

The fracture and eventual destruction of a marriage or long-term common law relationship, especially one which has produced children, is tragic.  A tsunami of failure, grief, loss, fear and anger swamp the family.  In the midst of that emotional toxicity, spouses are compelled to resolve urgent financial and parenting issues.  Absent an informed consensual written agreement, the only remedy, until recently, was going to court and battling each other in an expensive, frustrating, cumbersome and lengthy process.  Even then,  spouses might have to spend many thousands of dollars at the end of a multiyear process in a trial which could last weeks and wreak permanent emotional damage upon the children and parents.

Fortunately, there are now two more dignified and efficient ways of resolving issues without going to court.

The first is collaborative law, a process which focuses on a negotiated settlement where the lawyers act as coaches and problem solvers.  It offers an alternative to separated spouses who cannot reach agreement without professional assistance.  The shortcomings of the collaborative law process are that there is no decision-maker in the event of an impasse and there is no way to speed the process if one of the spouses engages in deliberate delay tactics.

The second and preferred method is mediation/arbitration or “med/arb”.  As the title suggests, mediation/arbitration is a two-stage approach which permits the spouses to maintain control of the outcome during the first stage (mediation), but which allows a binding decision to be made during the second stage (arbitration) if one or more issues cannot be resolved by mediation.

Mediation/arbitration begins when the spouses agree to retain an experienced family law lawyer or retired judge as mediator/arbitrator.  The mediator/arbitrator essentially wears two hats.  During the mediation phase, the mediator assists the parties in an objective, evaluative and sensitive manner to  identify the issues, discuss  and  resolve them creatively without a formal battle.  The function of lawyers during mediation is not to argue with each other or the mediator, but to provide information and creative solutions to resolve the issues.  The goal of every mediation is to settle all issues without the necessity of arbitration and to incorporate the settlement into a formal separation agreement.

If, during a mediation, one of the spouses becomes obstructive or overly confrontational on an issue, the mediator can indicate to the spouse that his/her position is unreasonable.  All mediators attempt to assist recalcitrant spouses to adopt reasonable approaches to resolve issues.

The mediation phase continues as long as the parties agree.  If an impasse is reached regarding any issue, either party can trigger an arbitration by indicating that he or she no longer wishes to participate in a mediation on that issue.  Mediation can be interrupted to allow for an arbitration on a single or several issues and then recommenced once the issues have been decided by the arbitrator.

An arbitrator is vested with the same powers as a judge of the Ontario Superior Court of justice.  The arbitrator’s rulings are as binding as a court order and equally enforceable.  If there is an urgent issue at the outset of the mediation/arbitration, such as child support, spousal support or the sale the home, the parties can direct the mediator/arbitrator to decide that issue immediately and then, once decided, move on to deal with all other issues in mediation.

Mediation/arbitration can begin as soon as the parties agreed to appoint a mediator/arbitrator.  Their lawyers normally convene a conference call with the mediator/arbitrator to discuss urgent issues, identify the issues to be dealt with, and schedule times for the mediation sessions.  The mediator/arbitrator drafts a written mediation/arbitration agreement which is reviewed by the lawyers and the parties, signed and witnessed.  By signing the mediation/arbitration agreement, the spouses opt out of the formal court system and agree that all issues arising out of the breakdown of the relationship will be dealt with in mediation/arbitration.

All issues which are resolved in the mediation phase are documented in a separation agreement.  Those issues which are not settled at mediation are decided by the arbitrator in arbitration.

Arbitration is a much more formal process than mediation.  Sworn evidence in the form of testimony by the spouses and necessary witnesses, including experts, is heard by the arbitrator as a judge would in court.  Evidence in arbitration tends to be less stressful because the parties and lawyers are familiar with each other and the mediator/arbitrator.  The mediator/arbitrator has the advantage of having listened to all of the discussion during mediation and has an awareness of the spouses’ background and issues going into the arbitration which a trial judge would not have.  This familiarity with the spouses’ history is invaluable in shortening the time for the arbitration, thereby reducing costs.

After hearing the sworn testimony, reviewing all documents which are admitted as exhibits in the arbitration and hearing legal arguments from the lawyers, the arbitrator issues a written decision which has the same legal effect as a court order.  The decision can be appealed to the Ontario Court of Appeal if the arbitrator has made a serious error of fact or has misapplied the law.

It is not unusual for spouses to accumulate significant and complex bundles of assets prior to separation.  Those assets might be in the form of shares in a private corporation, land, partnership interests, pensions, esoteric investments or a myriad of other types of property.  The division and preservation of the family’s assets, while maximizing the after-tax value of those assets, is a task best suited to mediation/arbitration.  Judges in court do not have the power or ability to recommend tax planning structures to separating spouses.  Our judicial system also does not have the resources to provide an individual judge to each separating couple to preside over the negotiation and settlement of all issues.

The process of mediation/arbitration is the best process developed thus far to assist separating spouses to rationally and efficiently resolve their issues in a dignified, tax efficient manner.  The rational goal of families undergoing separation should be to resolve all of emotional, custodial and financial issues as swiftly and cheaply as possible to enable everyone to get on with their lives as soon as possible.  This requires closure, both emotional and financial.

Court battles should be avoided at all cost.  Centuries ago, when life was brutish and short, battle was the method of resolving disputes because there were no better alternatives and society was much less sophisticated.

The stereotypical lawyer whose role was to combat and destroy the other spouse in a court setting will soon be obsolete.  The new generation of lawyers will not be combatants.  They will be problem solvers and coaches for people who need assistance  through the maze.

The resolution of novel legitimate issues often does require the determination by an impartial fact finder who has knowledge of the law.  Those issues do require skilled legal argument and  resolution by arbitration.  The rest of the issues, the typical fallout from any marriage breakdown, can and should be resolved in a safe and structured mediation format.

(Tony Keller has practised civil litigation and family law for over 35 years in the Kitchener/waterloo area. He is the senior partner of Keller&Morrison in Waterloo. He was admitted as a member of the Arbitration and Mediation Institute of Ontario in 1992)

©September, 2012 by Tony Keller (all rights reserved)