Article written by: Dwayne Pyper, CPA, CA, CBV
Partner, Financial Services
I’ve been involved in litigation support on matrimonial files and other disputes for years, and I have come to one absolute conclusion…the vast majority of people must find a better way!
Options to litigation can include both collaborate law and mediation. I’ve written in the past about collaborate law, but now I want to draw your attention to mediation. It can often be the best way to resolve disputes on matrimonial matters, corporate shareholder disputes, or really, disputes of any kind.
Virtually everything included in this article is equally applicable to all kinds of disputes. It’s just that my exposure to dispute resolution has most often revolved around family matters, so some of the discussion will have more of a family focus.
Did you know that Rule 24.1 of the Rules of Civil Procedure establishes mandatory mediation for case-managed civil (non-family) actions and Rule 75.1 brings contested estates, trusts and substitute decision matters within mandatory mediation? However, Rules 24.1 and 75.1 apply only in Toronto, Ottawa and Windsor.
This raises two big questions in my mind: Why not family cases? Why not other areas of Ontario?
In Ontario, mediation is a voluntary process when it comes to family issues. However, I don’t think enough is being done to ensure that families in crisis adequately consider this option.
What is mediation?
Mediation is one way for people to settle disputes or lawsuits outside of court. In mediation, a neutral third party (ie – the mediator) helps the disputing parties look for a solution that works for them. It is a voluntary way of resolving disputes where a trained mediator helps parties of relatively equal bargaining positions, resolve disputes.
Mediators are usually social workers, lawyers, psychologists, or other professionals. When these professionals work as family mediators, their job is to help parties reach an agreement on support payments, the division of property, custody of and access to the children, or any other family-related issues. Mediators do not take sides or make decisions for the parties and they cannot give legal advice.
Mediators, unlike judges, do not decide cases or impose settlements. The mediator’s role is to help the people involved in a dispute communicate and negotiate with each other in a constructive manner, to gain a better understanding of the interests of all parties, and to find a resolution based on common understanding and mutual agreement.
Mediation is not appropriate for everyone. This is particularly the case when there has been violence or abuse. Where one party is afraid of or intimidated by the other party, mediation may not be a good idea.
The mediation process is voluntary and parties who are unhappy with the mediation process can leave it at any time.
The purpose of mediation is not to determine who wins and who loses, but to develop creative solutions to disputes in a way that is not possible at a trial.
How does mediation work?
Many parties negotiate during the course of litigation and statistics show that over 90% of all lawsuits settle before getting to the trial stage. Therefore, why not take the opportunity to discuss the issues in dispute first? With the assistance of a trained mediator, the parties explore settlement options and may be able to avoid the pretrial and trial process.
Parties considering mediation should speak to separate lawyers before seeing a mediator. It is helpful to know the law and your rights and obligations before mediation starts. Lawyers generally do not go to mediation sessions with the parties, so if you are considering mediation, you will need to decide whether it will be ‘open’ or ‘closed’ and sign an agreement to mediate (ie – the mediation contract).
In closed mediation, all discussions between the parties are confidential and cannot be used as evidence against either party with very few exceptions (for example, where concerns arise over the welfare of a child). In addition, the mediator will not report to the lawyers or the court on the progress of the mediation or provide an opinion on the issues that have been discussed in mediation to anyone other than the parties themselves.
Open mediation means that the process is not confidential. With open mediation, the mediation contract may also authorize the mediator to prepare a report once the mediation finishes.
You can ask a mediator for more information about the differences between open and closed mediations.
It is also important that any agreement reached during mediation be reviewed by the parties with their lawyers before it is signed.
What are the benefits of mediation?
- Mediation often leads to resolutions that are tailored to the needs of all parties. Generally, the best solution to a problem is one that is worked out by the parties themselves.
- Many people find mediation more satisfying than a trial because they play an active role in resolving their dispute, rather than having a solution determined by a judge.
- The mediation process is informal and can be completely confidential. Parties in mediation may speak more openly than in court. Many people find mediation to be a more comfortable and constructive process than a trial.
- In situations where the parties have an ongoing relationship, mediation is particularly helpful because it promotes cooperative problem-solving and improved communication.
Mediation, collaborative law and litigation have some significant differences, but they can all be improved if you keep the following tips in mind:
- Have a plan: Think about what is most important to you. For example, what goals do you have for the children’s education or the post-divorce financial outlook in general?
- Consult with a lawyer: A little knowledge can be a dangerous thing. Contacting an experienced lawyer is the very first thing you should do as they advise regarding your rights and responsibilities.
- Form a team: Think about having a jointly retained financial expert involved for any type of Alternative Dispute Resolution (“ADR”) process. Depending on the nature of the issues, other professionals may be beneficial as well.
- Be honest: When you go to see your lawyer, tell them everything. Don’t ambush them with a totally new aspect to the case later on.
- Draw up a good faith plan: In a family dispute context, this is called the ‘parenting plan’. Decisions have to be made about healthcare, education, religion, and extracurricular activities. Who is going to be the final decision-maker?
- Know your best and your worst case scenarios: Mediators often refer to this as the ‘best alternative to a negotiated agreement’ or ‘BATNA’. Determine your key issues in advance so you can be more flexible on the others. Knowing this will make it easier to assess your risk and make decisions throughout the process.
- Strive for settlement: Regardless of whether you use one of the available types of ADR or litigation, make every effort to settle the matter! You’re always better to settle than to go all the way to court and let the judge decide.
Give mediation a try…I think that you have nothing to lose and a lot to gain! DJB can help you through the process.
References and thanks go out to:
Ontario Ministry of the Attorney General – Ontario Mandatory Mediation Program:
Ontario Ministry of the Attorney General – Family Mediation Services:
Robert D. Bordett, CFP, CDFA, Collaborative Practice and Mediation Services:
Click here to read other articles included in the FSAT Fall 2014 Edition newsletter.