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FAMILY & ELDER LAW reform is underway in Toronto. Reform of “the way we do things” that is.

Normally, when parties separate, they turn to the court system if they are unable to negotiate an agreement themselves with respect to the many issues which they may face. Often, they consult a lawyer whose main emphasis is to bring the matter to court or threaten court if negotiations are not going well. For many years, most FAMILY & ELDER LAW professionals have understood that the adversarial system represented by the Court is not the best system to deal with the sensitive, emotionally charged issues surrounding the trauma of separation. Even when people go to court they most often do not end up actually having a trial, as more than 90% of cases settle before trial. We often wonder why does it take people that long to come to an agreement? To that question there is no easy answer, but we certainly know that when they get that far along in the process, the parties have spent tens of thousands of dollars, dollars which they cannot really afford.

Several years ago, Alf Mamo, a prominent lawyer from London, Toronto, was commissioned by the Provincial Government to study the family court system and to make recommendations specifically around Family Court. Alf’s report was submitted to the Government and then nothing happened.

Last November, the Toronto Bar Association’s FAMILY & ELDER LAW Section, the ADR Institute of Toronto, and the Toronto Association for Family Mediation along with several other professional groups including the Collaborative Lawyers Association for Toronto, put together a program in an effort to flesh out and examine practical ways of dealing with the issues set out in the “Mamo Report” as it has come to be known. I was honoured to be one of the co-chairs of the program which was held during November 2009. We gathered together about 120 people for two days of workshops and asked the groups to examine how the system could be improved and to make recommendations that would be embodied in a report to the Provincial Government. The attendees were from a variety of different professional groups – lawyers, mental health professionals, members of the judiciary, members of the public who had experienced first-hand the workings of the existing system, professionals within the various ministries of government who deal with family court issues on a regular basis, representatives of different cultural and academic groups, law professors, and anyone who had an interest in process reform.

The results were rather surprising in several senses: First almost all groups agreed that for the vast majority of cases involving family breakdown, the adversarial system was not the best system. Secondly, the provincial government under the Attorney General’s leadership, took a very active interest in the process and promised to implement the recommendations if that could be done within the confines of provincial budgets. Third, although not very surprising, the recommendations which came out of the workshops were excellent. What was surprising is how well they were received. Now the provincial government is trying to implement FAMILY & ELDER LAW process reform across the province and many of the recommendations are being seriously considered.

What does all this have to do with mediation and arbitration? Well, the answer is fairly simple: Almost all groups recognize the advantages of mediation. If done properly, mediation can protect the parties’ interests while at the same time saving them tremendous expense both in terms of money and in terms of emotional trauma. Mediation affords people the opportunity of dealing with their emotions while at the same time rationally handling the financial and child related issues involved in every separation.

As importantly, other approaches to dispute resolution such as collaborative law are being recognized as excellent methods of achieving agreement through empowerment.

The provincial government is now dedicated to providing separating couples with information and advice on how best to handle their specific issues – information leading to a better method. Providing people with information and with knowledge is the key to breaking down the automatic adversarial system.

While there will always be cases and couples who need to go to court to have their issues resolved, the vast majority of couples who do turn to court and don’t need to may now be given that information and may now begin to approach their problems in a much less adversarial manner, which can only bode well for the children who also must live through the breakdown of their families.

To learn more about how mediation and other methods of resolving the issues surrounding your separation can help lessen the financial and emotional impact upon you, please contact our office and we will be pleased to provide all the information you need.

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Increasingly over the past 10-15 years the courts have been inundated with FAMILY & ELDER LAW cases.  This has caused a considerable backlog of court cases, generating needless delay and expense for separating couples attempting to resolve their FAMILY & ELDER LAW issues (child custody, child support, spousal support, property division, ownership & occupation of the matrimonial home, etc.).

This increased stress on the court system and the increasing cost of legal services for separating spouses has motivated those involved in the system to look for more cost effective alternatives.  These alternatives have included the provision of FAMILY & ELDER LAW legal information through various government websites, self-help group websites, programs put on by the Ministry of the Attorney General at courthouses through Toronto [called Mandatory Information Programs] and community agencies and organizations establishing educational programming for parents and the children going through the separation process.

One of the most popular alternatives to judicial dispute resolution that has attracted a lot of attention are the mediation initiatives that have sprung up around the province. However, just as with other consumer services there is an increasing need for the regulation of those holding themselves out as mediators or arbitrators.

There is little formal control over the quality or the credentials of those offering mediation services.  As a FAMILY & ELDER LAW lawyer it has been increasingly common to hear horror stories from clients complaining about the lack of clarity of resolutions achieved in mediation or that various topics or issues that should have been canvassed in mediation, were not. I have even seen separation agreements written by mediators who have performed the mediation in which they “assisted” the parties in achieving a resolution. Sometimes these separation agreements [or the supporting documentation with them] makes no mention of whether the parties have had an opportunity to receive independent legal advice throughout the process or before they have signed the separation agreement.

In the rush to save money, separating spouses often end up causing themselves further grief, stress, and expense when the need arises to interpret a clause of a poorly drafted agreement or to deal with an issue that was not contemplated in the agreement drafted by the mediator.

Family mediation has reached the point of general acceptance by the population and thus requires regulation – whether that be self-regulation or governmental regulation is the pressing issue for these service providers and for those receiving mediation services.

At the present time mediators providing services in Toronto within the family court system must have accreditation or certification. At present Family Mediation Canada, the Toronto Association of Family Mediation and the ADR Institute of Toronto Inc. have criteria by which they assess members who seek to provide family mediation services. There are requirements for specialized training and a minimum amount of relevant work experience. However, for those providing mediation services outside of the court system there are no similar requirements before hanging up a shingle as a mediator. While many FAMILY & ELDER LAW mediators are lawyers who therefore have professional qualifications through their law society there are others, such as social workers, clergy, etc. who offer services as FAMILY & ELDER LAW mediators who may or may not have the skill sets, education and training to provide quality services to a relatively vulnerable population going through an emotional stressful journey.

The FAMILY & ELDER LAW Lawyers at Macdonald & Sager LLP have been offering mediation and arbitration services on an informal basis for several years.  We are now formally offering Mediation and Arbitration services through ‘Macdonald & Sager LLP Resolution Services’.  Tom Dart, Kim Kieller, Doug Manning and Eric Macdonald have, among them, over 70 years of combined experience as FAMILY & ELDER LAW lawyers and over 25 years of experience as Mediators and Arbitrators sanctioned by the Toronto Association of Family Mediation and the Arbitration Institute of Toronto.  We bring a wealth of experience and creative problem-solving strategies to clients who wish to retain our services to act as Mediators or Arbitrators in their dispute or to represent them as their lawyer within the context of Mediation and Arbitration processes.

By Douglas J. Manning, Partner, Certified Specialist in FAMILY & ELDER LAW

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