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Eyes Wide Shut: A Note to My Future Mediation Colleagues

As established mediators, we have a responsibility to constantly both reflect upon, and critically assess the existing state of mediation training. Not in an effort to discredit but rather, to inform ourselves and others with a view to always seeking to improve it.

There is a Clear Divisiveness! And, Mediation Training May Contribute to It.

Ideally, as family mediators, we want to avoid creating more issues than divorcing couples already present with. Unfortunately, we still have a long journey ahead. In today’s dispute resolution context, there appears to be a great deal of confusion, for both the public and practitioners, as to who does what and who is best qualified to do the work of a “family mediator”. In Ontario, a few organizations, OAFM, FDRIO, ADRIO and FMC, have taken on the challenging task of developing accreditation standards. However, not every accredited mediator is treated or promoted equally in the field.

Intentionally or not, there is a clear distinction made between mediators who possess a law degree and those who have other degrees. This distinction, unfortunately only becomes evident at the commencement of mediation training and after the commitment of thousands of dollars to family mediation courses. It is my experience, also shared by many others, that the divisiveness intensifies even more upon completion of training, specifically when mediators go on to establish a private practice, assuming that that’s the goal of their pursuing mediation training.

Lawyers as Teachers of Mediation…

The vast majority of trainers in the family mediation field are lawyers. This may be of concern. For one, the skills required to practice law are very different than those needed to practice mediation.  As such, when teaching, there may be an unintentional altering of those skills promoted in the course outline. Lawyers as instructors (and without any teaching background) may cause a training program to be biased and, therefore subtly (or not) steer learning away from its original direction and intention. In fact, the perception of bias alone may jeopardize the trainer-trainee relationship and, in turn, impact the attribution of a trainer’s competence. Without trust, admiration and inspiration, learning will inevitably be stunted.

Second, self-esteem and confidence in one’s ability may be either seriously compromised or incorrectly exaggerated. One example that comes to mind is the assertion made throughout dispute resolution courses that, even upon completion, those without a legal background cannot/should not deal with parties’ financials. This is interesting because outside of a recent 21-hour course, there are no such impositions for lawyers when addressing non-financial/non-legal issues. Simply put, one may purport that having a law degree equates with competency in all areas. This mindset does not only create a fundamental imbalance; it also sets a dangerous precedent. On one hand, it acts to inflate a lawyer’s confidence in skills they may not possess, such as developing child-focused parenting plans; understanding the underlying interplay of complex cognitive, emotional and psychological factors; managing emotions; recognizing and addressing mental health concerns; and, properly identifying and managing risk of abuse during and post-separation. On the other hand, it can serve to deflate the confidence of those who do not have a law degree and frighten them away from conducting what’s referred to as “comprehensive” family mediation, where all of the matters are supposedly dealt with in mediation.

It is then, not an accident nor a coincidence that, post-mediation training, the imbalance continues to intensify and, so, potentially affects the establishing of a lucrative practice, if that’s the goal! Lawyers have been primed to believe they have all the necessary skills and are given the green light to conduct comprehensive family mediation, whereas mediators with other than law degrees have been warned against doing so as if to suggest their skills are somehow inferior. And, so, despite having undergone similar training and accreditation process, the design of mediation trainings places some mediators at a clear advantage while others are only left with thousands of dollars in debt (on top of  frustration and confusion).

In her report, “Making Peace and Making Money: Economic Analysis of the Market for Mediators in Private Practice“, Urška Velikonja, a Teaching Fellow at Harvard University, points to trainers as having a responsibility to fully disclose the realities of mediation practice to aspiring mediators:

The failure by mediation trainers to provide accurate information about opportunities to make money in mediation contributes to excess entry in the market for mediation services….[I]naccurate information about the availability of mediation jobs as well as overoptimism lead aspirant mediators to spend money on mediation training and starting a mediation practice, and incur opportunity costs by foregoing other career opportunities. Not only may the failure of mediation trainers to fully disclose the pros and cons of mediation practice and correct trainee misapprehensions be unethical, it also leads to socially inefficient outcomes. To correct this misallocation of resources, mediation training programs should disclose information about “the known opportunities, limits, and obstacles in mediation in mediation employment and professional practice opportunities.”

Skilled Mediators Are Overshadowed by Turf-Wars and Politics

In reality, it is extremely difficult, if not impossible, for accredited family mediators who have other than law degrees to establish a successful practice. Why? Well, if only family mediators with a law degree are told they can do it all (financials, parenting and draft separation agreements) then there is no incentive for disputing couples to go anywhere else. And, how are family mediators without a law degree expected to promote their business: “Accredited Family Mediators Offering Some Mediation Services”? You see how quickly this can become a highly frustrating exercise. Second, a large number of lawyers refuse to work with mediators who don’t have a law degree, deeming their work as “sub-par”. This sad reality ultimately spills into the quality of service that divorcing families receive; since evidently it would be best to work together to provide for most effective process.

Family mediation training is a good example of a faulty design where learner-centricity is overshadowed by turf wars and politics. As it stands, its design greatly destabilizes the original core of ADR, pulling farther away from clients’ self-determinism and right to options. Without a doubt, it incorrectly promotes the conceptualization of mediation as an extension of the law model and/or a mere add-on to one’s law practice. Today, many lawyers feel OK including “family mediation” as one of their services, even when they don’t have any mediation training whatsoever. How come? For one, the Rules of Professional Conduct allow for anyone to be a mediator, with a minor caveat that they are to remain “neutral” and stay away from providing legal advice (pretty vague and subjective). And, second, the mediation field has established the ground for lawyers to be perceived as “superior” family mediators; this is not only evidenced by the language and materials used in coursework, but also by the difference in mediator fees (for example, some Ontario courts have a fee cap for family mediators who have other than law degree).

To date, there is no research suggesting a correlation between a particular professional or educational background and the success at being a mediator. Theoretically, anyone can put up a shingle and call themselves mediators. Same thing goes for mediation trainers. One does not need to have special qualifications or educational background to develop a mediation training. There are, however, a few “established” trainers who pretty much control this market; and a large number them also happen to be at the helm of mediation course accreditation. This raises a number of ethical dilemmas, but that topic is beyond the scope of this article. I am only referencing it because I feel it is an important piece, illustrative of a larger cycle of bias.

My fear, which I wrote about plenty, is still very much alive: lawyer-centricity is causing a shift away from the original intention of ADR by placing focus on systems rather than families’ needs. And, as we can see, much of the mediation training contributes to this.

Want to be a Family Mediator: CAVEAT EMPTOR

I am not suggesting that everyone who’s taking mediation training wants to make a career out of it! But, most mediation courses are being marketed and sold that way; and lots of people jump both feet in! Optimistic and energizing keywords are consistently inserted in marketing campaigns, creating the illusion that mediation training is a gateway to full-time employment or that second career. In reality, out of tens of thousands trainees, very few get to practice mediation and even fewer get to make mediation their full-time job. And, a large majority give up within two years to return to paying jobs. There are many contributing reasons:

  1. Trainers don’t fully disclose the obstacles of obtaining mediation work and so, many trainees discover these too late in the game. As Urška Velikonja puts it: “…the profession trains too many people for jobs that do not exist.. But, the trainers do make money!
  2. The training is heavily skewed towards lawyers: after all, most instructors are lawyers.
  3. It takes a lot more than a mediation training to be or become a successful mediator. Young graduates virtually don’t stand a chance to turn family mediation into a day-job. One wouldn’t, however, be able to read this very fine print anywhere.
  4. Gaining experience requires hands-on practice. Finding an established mediator to work with and teach you the ropes is not an easy task at all! It’s a pretty lonely road ahead once training is completed.

Ironically, and this is where we should turn our minds to, the public does not really make any distinction between accredited and non-accredited family mediators. Whose responsibility is this?

All in all…do not despair – Information is power! If family mediation is your field of choice, be wise and strategic! It’s not a regulated field; I am not saying it should be (that’s a whole different story)! Do your research on training, trainers and course materials. Ask critical questions about how you will achieve the course objectives and reflect on how those match your personal and professional goals. Call mediators in your community and ask about their experiences in the field. But, for the love of God, do not quit your day job – not just yet!

Can’t afford a lawyer, but still need legal help? Consider unbundled services!

Think about whether you want to hire a lawyer who offers unbundled services. This means you can hire them to help with a certain part of your legal problem only. For example, to help you prepare your court documents.

This option is useful if you can’t afford to hire a lawyer to help with the whole legal problem. Or for example, if you hired a lawyer to help with your problem, but now don’t have enough money left to keep paying them. Unbundled services can also be called limited scope services, unbundled legal services, or legal coaching.

 

A lawyer that offers unbundled services usually divides all the things they would usually do for a client into smaller, separate steps or items. You can hire them to only do the things that you decide you need the most help with.

 

Unbundled services can be:
• Legal advice: meeting with a lawyer to get advice on what your legal options are
• Preparing documents: a lawyer prepares your documents, for example, a court application or a separation agreement
• Appearances: a lawyer represents you in legal situations, for example, at a court hearing, or at a case conference
• Coaching: a lawyer guides you through the court process, or explains how to submit evidence
Lawyers who offer unbundled services usually charge a flat fee. You may have to pay this fee before they help you. Usually you don’t have to pay any other deposit or retainer.
Some lawyers have websites that say if they offer “unbundled” or “limited scope” services. Others do not, but if you ask them, they may be willing to offer it to you.”

[Retrieved from
: https://stepstojustice.ca/common-question-step/1-find-lawyer]

“Bring her to the negotiating table on her knees”

Once I realized that my spouse and I were going to separate, I contacted a family lawyer to assist and to help guide me through the process. The first lawyer that I saw started by working on a plan to “cut off this and cut off that” and was adamant that I do everything in my power to hurt my partner financially and “bring her to the negotiating table on her knees”. The anger and aggression emanating from this individual actually scared me and I realized that this was not the right lawyer for me… I was scared and confused enough without looking for more conflict.

The next attorney that I contacted was helpful in arranging a separation agreement, but kept asking for meetings with myself and my (now) ex-wife to review the terms and firm up the agreement so that it could serve as the template for a divorce agreement. This process took over 2 years and several thousand dollars and at the end of this I was absolutely no further ahead in negotiating an agreement.

I then contacted a family lawyer who had helped a friend with a “high conflict divorce”. My divorce proceedings were not “high conflict”, and my ex-wife and I were able to meet and verbally agree to terms for the divorce several times. However, after we had agreed between ourselves to terms, the agreement was sent to one of our lawyers to write up and ensure that all was legal and acceptable. The agreement that came back from the lawyers, either hers or mine, was never what we had agreed to between ourselves and materially changed almost every element of the agreement…. I started to realize that we were never going to settle this with lawyers who were eager to continue to alter our agreed upon terms and kept circling back to “having our day and kicking some butt” in family court. I was now several years separated and had spent over fifteen thousand on legal fees without any progress.

With the help of mediators in the community, we were finally able to agree to divorce terms and find lawyers who were not pushing us into a courtroom and we were able to finalize a divorce agreement on the terms we had agreed upon several years earlier but could never seem to get either of our attorney’s to write into a legal document.

My experience with the attorneys that I had worked with was that my wishes and my desire to ensure the comfort and security of my children was always secondary to the lawyer’s desire to get into a courtroom and battle it out. I never wanted that; the last several years had been painful and expensive enough. While their intent may have been to “protect my interests”, the reality was that I was spending time and money on a process that wasn’t what I wanted and that was, ultimately, unsuccessful. Breaking the cycle of endless letters and office visits and just working on what we both wanted was the key to a mutually acceptable agreement that allowed us both to move on with our lives and put my focus on what was truly important to me and not my attorney.

Author: John A.

A Father’s Story

In 1987 my wife decided to leave…

We had 3 children. There were a number of reasons, and through talking it out with her we decided it was best for me to have full custody of the children, with her getting weekend and summer visitation. Initially, we involved lawyers which were expensive and made matters worse. By coming to an agreement ourselves, it did make things easier, although it was still very hard. There were no resources to turn to to get help and advice. We basically did it on our own.

Of course, this was nothing compared to becoming a single dad. I was really on my own except for one other single dad. I wasn’t raised to be the full-time parent and to carry a career. But, I did manage to make it through and did alright.

I eventually went on to be an online advisor for single parents and for those separating and divorcing, trying to help other single parents, especially dads. It came in handy when I went through my second divorce having a fourth child.

Workgroups and seminars such as the one the Family Mediation and Resource Centre are offering would have been a valuable and welcome resource back then. Surprisingly, being even needed more today, these types of resources are paramount for divorced and single dads.

If I could offer one piece of advice, it is make every decision based on what is best for the children. What is best for the children, in most cases, is to keep their lives as normal as possible, know that they are not to blame, and make sure they have equal and open access to both parents.

Rob

Check out our FREE events and groups:

Divorced or Separated Dads Group
Family Law Information Session (FLIS) 

Why a Peer Group for Divorced Dads?

While going through divorce, didn’t you always want a well-informed buddy who you can talk, gather information and plan ahead with?

This Divorced Dads Group was motivated by the notable lack of supports for dads experiencing divorce or separation. Its premise is that dads are equally important in their children’s lives and, just like moms or anyone experiencing divorce, dads also need help navigating through all challenges that separation comes with.
This group welcomes dads who have managed to successfully move past their divorce – to share their experience and help others.

Each dad needs different things:

  • Some dads need to share their experiences in a safe space
  • Some dads need to know that they’re not alone during this tough time
  • Some dads need more information about community resources
  • Some dads need to learn of different options to deal with their divorce
  • Some dads need to be heard and not judged
  • Some dads need to bounce ideas around
  • Some dads need to form positive relationships with other like-minded dads
  • Some dads simply need to share a laughter with others who get what he’s going through

The reality is that, sometimes, we all need support. And, you’d be surprised at how much well-informed “strangers” may actually support you more than the people you know.

Legislative provisions related to marriage and divorce of persons with mental health problems a global review

In many cultures women will be expected to marry according to gender roles and gender role expectations. Combined with mental illness this may create double jeopardy against women with mental illness and discriminate against them further… Full article here: Legislative provisions related to marriage and divorce of persons with mental health problems a global review

Time to re-think access to justice!

Families are at the core of our communities! We need NOW more than ever community togetherness, understanding and accepting of diverse perspectives! Our families need access to dispute resolution processes right here, in the community! Support empowering yourself and your neighbour – that’s how we’ll build a stronger, more resilient and peaceful society!

Access to Family Dispute Resolution processes should start in the community and should remain within the community!

Laura Catone-Tarcea

The way we treat the most vulnerable members in our community is the truest reflection of how caring a community we are.

It is now estimated that about 60% – 80% of family law litigants are unrepresented. Many of these families cannot afford representation. The court system can be a difficult, lengthy and unpredictable process. It often increases the intensity of conflict between family members, leaving them financially and emotionally exhausted. For low and middle income families, access to justice is even more challenging.

The time is now, for effective change! Community-based family dispute resolution (C-FDR) is in many situations a viable, if not the only practical (affordable) alternative to a court-based process. Unfortunately, this type of service is almost non-existent across Ontario and many families are falling through the gaps. In the following paragraphs, I intend to highlight the dire need for investment in this service, to become an essential and primary community service.

Sadly, conflict has become a norm in life – it abounds. Yet all too often, access to alternate means of resolution is only accessible to those of financial means. These alternative mechanisms are rarely accessible to the lower/middle classes, and to those with mental health challenges or of different cultural backgrounds. It is these – the majority of the people that stand to lose the most, ending up struggling to find resolution within an overcrowded and very unfriendly legal system. Factors such as money, power and control, eclipse the need to create attainable, culturally and linguistically appropriate processes for families within their very own communities.

Community leaders are all too often vocal about supporting and advocating programs that promote safety, “connectedness” and growth. As well, governments provide funding for projects aimed at improving access to justice, increasing public awareness and removing barriers to accessing the family justice system. And yet, despite all these “efforts,” these services are most times lacking in true humanity. I urge you to reflect on the rigidity and limitations of our current “access to justice services” which, in many cases, act as the very stumbling blocks to incorporating the very core of humanity and fluidity!

In all families, and in fact in all communities across the world, fluctuation, change and fluidity are the main ingredients of daily life and growth. Change, particularly in family dispute resolution, is a given, and yet our social services barely allow for it. Au contraire, change has become a frightening concept; a destabilizing factor, which our current family justice system is holding onto as its status-quo. Please understand: I am not purporting that all change is good. Change and adaptation to change are part of our human endeavours and should be widely accepted and appropriately accounted for rather than becoming a trigger for implementation of punitive-like measures. In most court orders, change is rarely encouraged and often penalized. As result, the human characteristic is being suppressed, growth is stunted and tension and frustration become the new human status-quo. Instead of focusing on our humanness, we allocate enormous amounts of resources in focusing on “enforcement.”

We treat conflict in a similar fashion. While conflict is inevitable, instead of equipping community members in developing skills for peaceful resolution, considerable funds are being allocated to agencies that will dictate the manner in which conflict is to be resolved, thereby denying community members any potential for developing this fundamental skill set. As well, ownership and responsibility of conflict, instead of resting with its community members, is by default, externalized and placed in the hands of “quasi-experts” who have the power to exercise control that may not necessarily be in the best interests of the families.

Family mediation is not a natural extension of our legal system. Nevertheless, our current family justice system is designed by lawyers – for lawyers (who become judges), resulting in family mediation simply being an extension of the law model. Respectfully, it is submitted that it is families who ought to be the experts and it is they who should be at the centre of designing FDR systems. We need to begin to learn and to listen to families and structure services that are reflective and inclusive of this understanding. The current approach to family [and ‪‎access to] justice is not meeting the diverse needs of the very families it is meant to serve. We need to establish family dispute resolution services that are accessible, affordable and help community members (especially the vulnerable ones) maneuver with ease in investing in the growth and well-being of our communities. The deliverance of FDR services has to become culturally and linguistically appropriate and representative of the community it serves. We don’t only need “better” services in the FDR field. We need to adopt an entirely new framework to better resemble humanity and to uphold dignity. It is respectfully proposed that a holistic, multidisciplinary and community-based approach needs to be at the core of this framework.

Divorce/separation does not only affect the partners in the relationship, it extends wide – to children, extended family members and the community at large. Being informed about separation/divorce and the legal family process is necessary and relevant public education that should be easily accessible to all members of a community, including those who are not going through separation. Education and information at an early, neutral stage is crucial if community members are to become empowered, in order to make better choices for themselves and their families. While there are court-connected mediation centres across Ontario (albeit for limited hours), these are operating directly under and within Ontario’s justice system with strict rules and guidelines that often prohibit citizens from accessing the services. Barriers such as educational background, financial means, language or mental illness make accessing court-connected mediation centres an almost impossible and highly frustrating option. In addition, the lack of trust in the judicial system prevents many from accessing these services. Unfortunately, court-connected mediation is the only point of entry for individuals in the low and middle income brackets, while higher income people can choose from a wide range of out-of-court family dispute resolution processes. We need to take a hard look at and resolve this gross imbalance and inequality. Not only are we denying the right of choice, but we are placing these people and their children at risk of harm with conflict “escalation.” All individuals, no matter their income level, culture, gender or race, must equally and justly be provided with similar access to quality services and the right of choice.

If we are serious about preserving and fostering human “connectedness”; if we want to improve access to justice for families who are going through divorce or separation; if we want to provide quality family-centered dispute resolution services and the right to choice, then we need to empower our communities! We need to begin to prioritize establishing and maintaining family dispute resolution entry points – starting right within our communities.

In conjunction with adopting a family-centered approach, instituting well organized and funded FDR services outside of the court system will:

  • reduce considerable governmental costs associated with failure to resolve family matters in a timely and cost effective manner
  • benefit courtsby triaging and reducing the number of unrepresented individuals
  • enhance community viability and promote interdisciplinary collaboration among family support professionals
  • inform and educate the public of effective and creative conflict resolution alternatives
  • improve access to justice and enhance community togetherness
  • prepare and equip future generations with invaluable conflict resolution skills

The time is now to take the right steps in bringing justice, fairness and equality to our neighborhoods 

Read Why the Mandatory Information Program established by the Ministry of Attorney General should be accessible BEFORE COURT (the choice is yours!)

 

What judges see in court

What judges see in court is beyond belief and certainly more dramatic and gut-wrenching than any television show or movie. As any family law lawyer, judge, or litigant will tell you, family court litigation is expensive, time-consuming, unpredictable and highly stressful.” (Brownstone, 2009)