When I was enrolled in law school, there was a concentrated effort to introduce us to “Alternative Dispute Resolution”. I simply had no interest. I was there to fulfill my dream of being a lawyer. Lawyers go to Court, right? They make their client’s case, they push for their client’s rights and they do so with righteous indignation! This was what I initially thought lawyering was about. I was more than somewhat naïve in this regard.
In 2004, the Law Society rules as to what “Students-at-Law” could do were much more permissive. What this meant is that I could do almost anything but for trials. I could, however, conduct Small Claims Court trials. I quickly learned that my articling principal, Mr. Elliott was not about to coddle me. I started my articles on a Monday and was immediately assigned two trials, scheduled in Small Claims Court that Friday.
One of the trials proceeded that day and my client won! This experience not only stoked my fire for the Courtroom; it set me upon a treadmill of litigation work that would consume the next few years of my life. On account of the fact that Mr. Elliott was senior Counsel, I got to work on family files that dealt with complex legal and financial issues that a lawyer of my vintage normally wouldn’t touch.
Shortly after my call to the bar, Mr. Elliott decided to “pack in” his practice of family law and I inherited roughly fifty of his family files. I hit the ground running. I did over twenty trials in the next four years. I loved the adrenaline rush, the non-stop pace and intellectual stimulation but something felt off and I wasn’t sure what it was. No one walks out of a family trial with a win - the family has already lost. But the loss does not need to be pervasive and enduring for the rest of their lives.
As time progressed, no matter which spouse I represented, I began to recognize that both parties were good people who were absolutely terrified. They had no control over what was happening to them. They didn’t know how much time they would have with their kids. They didn’t know where they were going to live, much less how the income that floated one household was going to float two. How would the bills get paid?
They were angry and upset over unmet expectations, the “failure” of their relationship and in many instances, they wanted to punish their spouse and make him or her pay for their disappointment and hurt. On top of all that, add the $300+ hourly rate for each lawyer, a Court system with limited resources and Court time! It’s a perfect storm or in my vernacular – a “trainwreck”.
I truly believe most parties involved in high conflict litigation are doing their best with the emotional resources that they have. Are they succeeding? Absolutely not! Does the Court process address the social and relationship issues that brings families to the Courtroom? Absolutely not! Does our current Court model educate the parties as to how to deal with any future issues? Nope! In fact, litigation often aggravates an already fiery situation and decisions are made when the participants are mired in emotions like anger and grief - which interrupt their ability to think rationally.
One night after hammering away in a trial all day, I was contemplating how ineffective a trial was to resolve family matters. What would this couple do when there wasn’t a lawyer to write a snarky letter over the children being picked up at 7:00 p.m versus 7:30 p.m? How was this couple ever going to arrange holidays and birthdays and vacations? They were so embroiled in their anger for each other, they couldn’t agree what day of the week it was!
And at the conclusion of this particular trial, the Court, social workers and lawyers involved in the case were about to set this couple loose, where they would be left to their non-existent devices to work together in their children’s best interests. Yet, over the three years they were in Court, they learned nothing.
Together or separated, conflict is inevitable and raising children is rife with tribulations and hard issues. Family law is vastly different from any other area of law. The current litigation model does not serve these families in a holistic fashion and is not set up to do so. Therefore their root issues remain and we see many families return to Court repeatedly because they are ignorant to any other way to sort out their troubles.
Later that same month, a senior lawyer from London with whom I had a file asked me if I had ever considered becoming a mediator. Initially, I internally scoffed at the thought. I was a litigator! Yet, I couldn’t let go of that nagging feeling that just maybe, mediation could provide families with another option. Could it be a more solution focused answer rooted in empathy, mutual respect and problem solving? I know it sounds so “kumbyah” but really, this constant battling in Court, was taking a personal toll. More importantly, I recognized it was incredibly destructive for children.
By the end of that week, I hesitantly enrolled in the first session available to become an accredited Mediator. Over the next two years, I steadily completed the course work and did my 100 hour internship to satisfy the requirements of the Ontario Association of Family Mediators. I have now been a mediator for almost eight years –which is more than half the time I have practised law.
It’s different work than litigation. In many ways, I find it much more challenging than litigation. In litigation, I only have to deal with one party and the end result is determined by the Judge. If I have prepared my case diligently – and I always do - I have done the very best I can and the result is out of my hands.
In mediation, I have two clients to manage. I am solely responsible for guiding them to a resolution. When a couple signs their Agreement, I find it so much more satisfying than finishing a trial! I feel like I really have helped them. More importantly, I have educated them on different methods which they can employ to deal with the inevitable future they will face when raising children and teenagers.
Mediation is exceedingly superior to litigation – for families who have the ability to mediate. The key difference I have observed, is that the family comes to the table with an attitude of “it’s us against the problem” versus heaping the problem onto the other party and believing it’s their sole responsibility to make it right.
The other benefit is that a skilled mediator can help the family craft creative and flexible systems for parenting, support and asset division that a Court cannot do. With mediation, you leave with a “domestic contract” - commonly referred to as a Separation Agreement. This document contains binding terms that sort out the issues and which meet your family’s unique needs. However, as I say to my families, the “deal” or contract has to be within the ballpark of fairness as set out by our current legislation. This makes your contract durable and enforceable.
Mediation is also much more cost effective. The fee for three sessions of mediation and a draft Separation Agreement is approximately $5000.00 (not including appraisals, pension valuations, and Harmonized Sales Taxes). A retainer for Court room litigation with an experienced family lawyer is approximately $5000.00 and that money doesn’t get you very far into the process before it is time to replenish the retainer.
The most important benefit that mediation brings is the ability to actively restructure your family. If you have children, regardless of the fact that you now live in two houses, you are still a family. When you choose mediation, you are choosing a more focused and goal driven resolution. If you have children this is particularly important. Children need both parents. They need you both there to celebrate their activities, their victories and to show up for the important moments in their little lives. They need to know that you can all be in the same room without awkwardness or much worse, conflict. They deserve this and it’s up to you as parents to provide this emotional security for them.
Parents are role models for their children - you are teaching them how to live life. The very best lesson that they can learn from their parents’ divorce is that life changes, it’s full of unanticipated and suprising twists and turns and it will be okay. In life we should expect conflict to arise. We should know it can be successfully resolved. Children learn coping mechanisms, resiliency and conflict resolution skills when they see their parents work together after separation. This can empower them to deal with a range of issues over their life, such as the school yard bully, the difficult boss and their potential partner. These powerful lessons will impact them for the balance of their life. Parents have the ability to choose whether the lesson is positive or negative.
It is hard to move past such issues as parenting differences, infidelity and improvident spending. I urge to put your children first, let go of your anger which is not serving you and move forward. Don’t choose to let your past hurts and disappointments dictate your future.
Life is so very short and has so much to offer. Every minute you spend in conflict, is robbing you of the peace and happiness your children and you so richly deserve.
Have a great week,
January 13, 2019