Category Archives: Mediation

Access to justice, Family Dispute Resolution, Family Law, Mediation, News

Conferenced-Out: Divorcing Families Need Help Outside of Conference Rooms!

Mediation is no longer something new. Ontarians however, don’t really know much about it and  when they do, the information has been somewhat distorted by the time it has gotten to them. As an accredited mediator, this troubles me!

With the exception of some great speakers, family mediators have yet to experience a sense of “quid pro quo” or professional fraternity when attending conferences. Those prominent names of 20+ years ago are the same gatekeepers entering today through the same revolving door. While current topics may have incorporated today’s “hottest buzzwords and phrases” (such as “access to justice”), at a macro level, not much has changed. The question still remains: what are the real benefits of attending conferences and how does it serve our public?  As an accredited mediator, this troubles me!

I have been on both sides: attending and organizing conferences. I have been vocal about the dire need for educating the public about mediation and its benefits; educating the lawyers on how to best support their clients through mediation; lobbying the government to allocate dollars to out-of-court mediation programs; and promoting mediation in an unified manner. And, yet, to date, someone seeking information about mediation, will get at least three different versions: one from mediators, another one from lawyers, and yet another one from our justice system. No one is taking responsibility. Sadly, political and personal agendas seem to be louder than people’s voices and families’ needs! As an accredited mediator, this troubles me!

And, for these reasons, I am all conferenced out!

I entered the mediation field with highest hopes: to help families overcome what could be a very traumatic experience; to guide people through what could be an extremely overwhelming process; and to instill a sense of hope in the health of their post-divorce reorganization! And… I can’t do this from a conference room!

Family Dispute Resolution, Family Law, Mediation

Affordable Family Mediation

Family & Divorce Mediation 

Serving Durham, GTA and Peel Region
(currently, we are conducting VIDEO only mediations)

FMRC provides a sliding-fee scale family mediation to families experiencing divorce or separation. We provide help with all of your matters, including financials, parenting plans and Separation Agreements (if needed).

Research clearly shows that going to court is committing to an adversarial and conflict-ridden process; not to mention, lengthy and costly! We will help you stay out of court and keep control over decisions regarding your family.

What is family mediation?

Family Mediation is a voluntary process where a trained professional, called a mediator, helps participants to negotiate a mutually acceptable agreement.  A mediator, unlike a judge or arbitrator, will not make decisions for you. You and your partner decide what will happen for your family. The mediator will act as a facilitator and referee, to help guide you regarding personal decisions for your lives and those whom you love. The key is: You and your partner maintain control over the outcome.

How does family mediation work?

Each party describes the dispute from his or her own point of view and offers possible solutions. The mediator helps the parties to focus on the real issues causing the problem and then helps them to find a workable solution(s). When the parties arrive at an agreement, the agreement is put in writing.

How do you begin the process?

Contact us to schedule an intake meeting. If you have a lawyer, ask him or her to connect with us.

Are there cases that should not be mediated?

Almost all problems can be resolved in family law mediation! You should however discuss with your lawyer or mediator about your specific circumstances.

How does divorce mediation help the couple emotionally?

Mediation supports the healing process; helps you focus on your future; eliminates aggressive bargaining and legal games; prioritizes the well-being of the children and addresses the parties’ needs and interests. You have a voice in the process.

So… Why choose Family Mediation?

It works. 80% family mediations end in agreement as the parties are motivated to find resolution.

It’s affordable. Parties generally agree to split the cost of a mediator. Mediated cases avoid costly litigation.

It’s quick. If everyone is committed, mediation results in settlement far quicker than waiting until near trial to settle.

It’s private. Almost everything disclosed during mediation is confidential and cannot be used in a lawsuit.

It’s impartial. Mediators have no stake in the outcome. Their role is to facilitate resolution of the family matters.

It’s cooperative, not adversarial. Family Mediation provides a comfortable, safe and respectful setting for discussion. It is nowhere as combative as court cases.

Family Law, Mediation

Icebergs & Family Law

Icebergs & Family Law

What does human nature have to do with icebergs, and for that matter, family law?  Although most of us deal with human nature on a daily basis, we rarely seize the moment to think deeply on the subject.

Jean-Baptiste Molière was a 17th century French playwright and actor.  He is considered to be one of the greatest masters of comedy in Western literature.  In the Misanthrope, one of his most famous short plays, we read these timeless words: “Let us torment ourselves a little less about the vices of our age and be a little more lenient to human nature.”

The law (I am told) is about “reason,” not “emotion.”  After all, if we really wanted to learn about emotion, we would have spent our days studying psychology and not the law.  Instead, law school taught us how to “think like a lawyer.”  Looking back at my years in law school and over my 24+ years in the business of law, I have come to wonder if I ever did get it. Truth is… I feel very much like an outcast amongst most of my colleagues, most times feeling quite vulnerable and distressed over the practice of law.

We can all vividly recall images of that deadly iceberg encountered by the Titanic.  Icebergs, as we know, have the bulk of their structure under the water – 90%, I am told.  That invisible part of the iceberg, under water, is dark, unknown, secret and hidden.  This seems to be an excellent metaphor for the relationship of the law, to reason and emotion.  As lawyers and judges, we focus on what is visible – above the water line: the conscious, logical, rational and factual.  Yet, we give little thought to under the surface (remember 90%) where lies our emotions; hidden, powerful, mysterious structures we ignore. I submit that we chose to ignore this aspect of human nature at our peril.

While the Canadian Bar Association and the Law Society of Upper Canada constantly initiate public relations campaigns to improve the public perception of lawyers, the legal system unintentionally conspires to perpetrate the behaviours that stamp a different perception indelibly in the minds of ordinary people. In ignoring human nature, the system (that’s judges and lawyers – you and I) continues to attempt to persuade the public that we are good people, while denying them the experience of connection with real human beings. We are out of touch with human nature and as a result, we can hardly appreciate ever being lenient towards it.

Our clients may believe they only need our intellect and our legal knowledge.  However, I truly believe that what they actually want, in fact deserve, to have the feeling that we are really present to them; that we are “connecting” with them, interested, not judging and that they are more than just another case.

Some time ago I argued a very difficult and emotionally trying motion. (I think you know what I mean.)  It never ceases to amaze me how complicated life can be.  I’ve come to fear (and I mean “fear”) bringing cases before the court, as I feel that there is increasing uncertainty and unpredictability in the outcome.

It’s quite understandable (and commendable) why more and more people are turning to Alternate Dispute Resolution, for at least one has some control over his/her destiny. When you go to court with a dispute… you just never know the outcome. In the end, there are rarely any winners.

Anyhow, back to that case. At the conclusion, I “lost” and I confess that I felt quite dejected, even though I knew I gave I did my best and gave it my best shot. To make matters worse, given the facts, I did not think it was an appropriate case to award costs.  The judge ordered substantial costs which I knew would come directly out of my client’s children’s mouths. That evening I shared the event with my spouse, who immediately said: “Marty, what the judge did was punitive and heartless.”

I thought about what my wife said and about that court appearance and realized that for the presiding judge, the case had everything to do with “reason.” Nothing to do with “emotion.”  I can see now that the judge was only looking above the water line and failed to give little thought that 90% below the line.

Law seems to offer an either-or choice: You can be objective (and be a good lawyer) or you can be emotional. Though I know that many of you will disagree, I still believe that we can have both.  When we acknowledge the value of human nature, coupled with all its emotion, and when we struggle to learn to recognize and appreciate our own underlying feelings and those of others, this, in my view is the making of a good judge and a good lawyer.

As we integrate our thoughts and feelings, there will be greater personal and professional satisfaction, for we are no longer making the “law” a matter of cold, barren reason, but we’ve connected with real people who have real problems in our mutual humanity.

Can we learn from these words of Jean-Baptiste Molière?  Are we so caught in our roles as “lawyers,” “judges” and “crown attorneys” that we’ve lost a sense of mercy – of understanding and compassion in our work?  Is there a place where we can adjust and look below the water line and be a little more tolerant in our dealings with others?  These are questions, I believe that we need to face and ask ourselves, for if we don’t, the system in which we work will be thrown to the vices of our age.

Marty Klein is senior counsel of Klein Law in Mississauga, practicing in the area of Family Law and through We Mediate, a new Alternate Dispute Resolution service.     

 

 

 

Co-parent with your ex, Mediation, Protecting children

Ten Tips for Success in Resolving Parenting Disputes

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Ten Tips for Success in Resolving Parenting Disputes

By Hon. Harvey Brownstone, Toronto, Ontario, Canada

  1. Be child-focused.

Parents must learn to love their children more than they dislike each other. Children need peace more than their parents need to win. Make your child’s well-being the focal point of every discussion you have with your ex-partner. Before taking a position on any issue, ask yourself, How will this affect my child? Ask your ex-partner to do the same. Never let a discussion with your ex-partner be about your needs or his/her needs; it should always be about your child’s needs. If you cannot agree on which solution would best meet your child’s needs, ask yourself how you and your ex-partner would have decided this issue had you remained together as a couple. In most cases, the answer would be to consult an expert. For example, if you and your ex-partner have a disagreement about your child’s health, or educational needs, or extracurricular activities, you should both be meeting with your child’s doctor, school, a family counsellor, or parenting coach. There are many professionals with special expertise to help parents resolve their disputes in a child-focused way. The first step to being a mature, responsible co-parent is to always put your children’s needs ahead of your own.

  1. Learn to distinguish between a bad partner and a bad parent.

The fact that your ex-partner was a bad partner does not necessarily mean that he/she is a bad parent. In my experience, most people who have been unfaithful to their spouses have actually treated their children very well. The way that a person treats his/her spouse in an unhappy relationship when no children are present may not be a good indication of how that person treats his/her children. It can be extremely difficult for a parent who has been mistreated by the other parent to accept that the child might see that parent differently and have a good relationship with him/her. Your child is entitled to get to know the other parent in his/her own right and to have a relationship with the other parent that is independent from your own. Even if the other parent is flawed, and even if restrictions or limitations must be placed on his/her contact with the child, your child can still have a safe and beneficial relationship with that parent. If your feelings about the other parent are standing in the way of your child’s relationship with him/her, you should seek help from a counsellor or therapist.

  1. Never speak negatively to the child about the other parent.

Your child has a right to a loving relationship with each parent, free of any influence or brainwashing. Moreover, your child needs and deserves emotional permission from you to enjoy his/her relationship with the other parent. It is unfair and cruel to place your child in a conflict of loyalties and make him/her choose between you and your ex-partner, as this deprives the child of an important relationship. Keep your thoughts and opinions about the other parent to yourself; never share them with your child. Never draw your child into your disputes with the other parent. And while I’m at it, you should never criticize the other parent’s family, new partner, or friends in front of your child. Nor should you tolerate your relatives, new partner, or friends denigrating or berating the other parent in front of your child. Make it clear to them that your child is to be shielded and protected from adult conflicts. Besides, it makes absolutely no sense to criticize people that your child is going to have a lot of contact with — what exactly do you want a child to do with this information? Most of the time a child will go right to the person who has been criticized and repeat everything you have said! Trust me, I’ve seen it happen thousands of times. One thing I have trouble understanding is why parents criticize each other’s new partners. If you were attracted enough to your ex-partner to have a child with him/her, why does it surprise you that someone else finds him/her attractive? In most cases, a new partner had nothing to do with the breakup and is going to have considerable contact with your child. You gain nothing by making an enemy of that person.

  1. Never argue or fight in front of your children.

No exceptions. If you and your ex-partner cannot behave civilly in front of your child, then don’t be together in front of your child. It’s that simple. I cannot understand why so many parents have trouble pretending to get along with each other for the few minutes it takes to pick up or return a child at access exchanges. It’s called acting, and it’s not that hard to do! Parents — even those who live together — pretend in front of their children all the time. It is even more important to do this after separation, because children need to be reassured that their lives will be happy and stable even though their parents live apart. Why are parents able to behave well in a courtroom in front of a judge (at least the vast majority do) but not in front of their own children? Don’t they love their children enough to say “hello,” “good- bye,” and “have a nice day,” and make small talk for the sake of keeping things peaceful and pleasant? Apparently not. This is shameful. There are lots of ways for parents to communicate with each other without the children being present: they can meet in person, or use telephones, faxes, letters, e-mails, and, of course, they can communicate through their lawyers. There is absolutely no good reason for parents to expose their children to their conflict.

Parents who continually fail to heed this advice should be prepared to welcome the child protection authorities into their lives. (See Chapter 11.)

  1. Listen to the other parent’s point of view even if you don’t agree with it.

If you are going to communicate directly with your ex-partner, remember that communicating with maturity starts with listening. You must learn to really hear what your ex-partner is saying, and understand his/her point of view. In any disagreement, try repeating back to your ex-partner what his/her position is, and the reasons why he/she is taking that position. I often do this in court and am frequently amazed by many people’s inability to correctly repeat back to me what their ex-partners have just finished telling me only a few seconds before! For that matter, I am equally amazed at how often I am accused of saying things I did not say — thank heavens we have transcripts in court that record exactly what was said! The point I am making is that you cannot decide whether you agree with someone if you have not clearly understood what he/she is saying. You must put your emotions aside and listen with your brain. Even if you end up disagreeing with the other parent, you should at least be able to convey to him/her that you have understood his/her point of view. Many times I find that once two people have clearly understood the other’s position, they are not as far apart as they first thought they were. Good listening skills are not acquired overnight, but post-separation counselling can be very helpful in speeding up the learning process.

  1. Consider mediation before giving the decision-making power to a judge.

Too many parents react in a knee-jerk way to each other’s conduct by running to family court without first getting legal advice or considering the impact of starting a court case. It is essential to consult a family law lawyer before taking any steps to resolve a conflict with an ex-partner. Your lawyer will explain your options and advise you on which one will best fit your situation. It may not be necessary to turn the decision-making power over to a judge. With the right help, you and your ex-partner may be able to arrive at compromises that will be better for your family than a court-imposed decision. Many thousands of parents have found mediation to be a beneficial problem-solving mechanism, so it is definitely worth exploring. For all the reasons given in Chapter 2, going to court should be a last resort, except for the special circumstances set out in Chapter 3.

  1. Separate your financial issues from your parenting issues.

In any family breakdown, there are two types of issues to be resolved: financial issues and parenting issues. These are completely separate matters and should be dealt with that way. With the exception of the intersection that might occur between access and child support (see Chapter 9), you should not allow your discussions and disagreements over property and money to enter into your co-parenting relationship. Your relationship with your children should have nothing to do with financial transactions or property transfers. Even if your ex-partner’s conduct regarding financial matters is making life difficult for you, this should not interfere with his/her role in your child’s life. It can certainly be a challenge to behave civilly with someone whom you think is trying to cheat you financially, but the ability to keep parenting issues separate from financial matters is a hallmark of maturity.

  1. Be flexible and reasonable in making access arrangements.

By far the greatest area of conflict between separated parents is that of organizing, carrying out, and enforcing access visits. Family courts everywhere are swamped with parents complaining of each other’s frequent cancellations, lateness, and a myriad of other misbehaviours. In a great many of these cases, a little common sense and fairness from both parents would have gone a long way toward resolving the problem. Do your best to follow the four simple tips about access given in Chapter 12. Be flexible and reasonable in accommodating your ex-partner’s work schedule and travel concerns, as well as changes in your child’s routines. Be considerate when dealing with access on special occasions and during vacation periods. You never know when you might need your expartner to extend the same consideration to you. Remember that access schedules must be adjusted to accommodate changes in the parents’ and children’s lives. This is not only normal but is to be expected, so go with the flow, don’t make a big deal out of every minor deviation from your access schedule, and be willing to make compromises for your child’s sake.

  1. Your children still see you as a family, so communicate!

As I have mentioned, you can be an ex-partner, but you are never going to be an ex-parent. If you truly accept that your children are innocent and bear no responsibility for your separation, then you know that they are entitled to be part of a family and to have their parents behave like family members, even though they live apart. Children who have contact with both parents need them to communicate with each other. I have had situations in which a child’s health suffered because one parent didn’t tell the other about the child’s medical problem, so the child didn’t get the proper medical attention in the other parent’s care. This is unforgivable. When a child is going frequently from one parent’s home to the other’s, it is vital that each parent know about anything important that has happened to the child while in the other parent’s care, especially an illness. It is also important for parents to have each other’s addresses and telephone numbers, unless there is a very good reason to not disclose this information — and even in that case, there must be some way for parents to contact each other (for example, through a third party) in the event of an emergency. Parents should have equal rights to obtain information about their children from schools, doctors, and other service providers. Parents should have equal rights to attend important meetings such as parent-teacher interviews or key medical appointments. Both parents should be able to attend special events in the children’s lives such as religious ceremonies, school events, sports tournaments, and music recitals. Even if there is a restraining order (or criminal court no-contact order) prohibiting contact, speak to your lawyer about the possibility of amending the order to permit at least some minimal form of communication regarding your child, even if it is in written form (for example, by using a communication book), or through a third-party intermediary. Your children need you to know what’s happening in their lives even when they’re with the other parent. If possible, find a safe and legal way to make this happen.

  1. Don’t hesitate to get help.

Family breakdown is one of the most stressful and painful experiences anyone can go through. The challenge of overcoming a failed partner- ship while at the same time developing a good working relationship with an ex-partner can be overwhelming. You do not have to do this alone. There are specialized counsellors and therapists who can help you, your ex-partner, and your child. Many community organizations offer excellent programs to help separated parents and their children make the necessary transition from ex-partner to co-parent. There are social workers and parenting coaches with the expertise to help you and your ex-partner develop a workable parenting plan. There are many books that offer great ideas (see “Suggested Reading”). Speak to your family doctor about a referral to a counsellor or therapist. It’s worth attending one meeting just to find out what services might be available to you and your family. Finally, remember that your family law lawyer is there to help you and can refer you to a number of community resources. Family law lawyers, like family court judges, know only too well that post-separation parental disputes are about much, much more than the law. Don’t let the legal aspects of your dispute interfere with the critically important human aspects. If you do, you may be doing a disservice to your children.

 

From Tug of War: A Judge’s Verdict on Separation, Custody Battles, and the Bitter Realities of

Family Court by Harvey Brownstone © 2008 by Harvey Brownstone. All rights reserved. Published by ECW Press Ltd.

Family Law, Mediation

Don’t allow a total stranger to make crucial decisions about your child

“AFTER FOURTEEN YEARS OF PRESIDING IN FAMILY COURT, ONE QUESTION HAS NEVER CEASED TO AMAZE ME: how can two parents who love their child allow a total stranger to make crucial decisions about their child’s living arrangements, health, education, extracurricular activities, vacation time and degree of contact with each parent? This question becomes more mind-boggling when one considers that the stranger making decisions is a judge, whose formal training is in the law, not in the family relations, child development, or psychology.” (Brownstone, 2009)