ARBITRATION – SHOULD I OR SHOULDN’T I

In an earlier blog I discussed mediation and the merits of dealing with issues such as custody, access, spousal and child support and equalization through that type of process. At that time I indicated that there would be a later post about arbitration and this is it.

There are those who believe that mediation/arbitration – as a package – is a better alternative than the actual in court process. There are those lawyers who include mediation/arbitration clauses in domestic contracts without giving a great deal of thought to the implications of those clauses to their clients. As a result many, many people are encouraged to sign mediation/arbitration agreements  or domestic contracts that compel them to follow that road and which takes them out of court almost completely.

 Arbitration may be presented to you as an alternative to the courts at the very beginning of your matrimonial dispute process or it may be a provision in your domestic contract or separation agreement listed under the heading ‘dispute resolution’ . Most often it is not carefully discussed and people sign these agreements without having a full understanding of what they will be facing.

 Beware. Once you have signed that agreement you are locked into that process and cannot get out until the arbitration is finished. You cannot change your mind halfway through. Only once the arbitration is concluded can you appeal the arbitrator’s decision to a court of law – and only if you have not waived that right in the agreement.

Issues such as support, custody, access and equalization can often be resolved in mediation and at a cost far lower than the substantial financial burden you will incur going to court. Does the same apply to arbitration. Absolutely not. And usually no one explains this before you sign the agreement.

Arbitration is in fact the hiring of a private judge. That means that you will be paying for not only your own lawyer but for the judge as well. And private judges don’t come cheap. In addition to the additional cost of the private judge (the arbitrator)  a court reporter is required during the arbitration and that charge as well has to be paid by the participants. At the end of the process there will be a cost award against the party who loses and that will likely include the successful party’s share of the cost of the arbitrator.

Further to the cost issue there is a scheduling issue. Arbitrators are almost always lawyers (or retired judges) who are in private practice and who have their own heavy schedules to contend with. That means that arbitration often takes longer from beginning to end than the court process.

Remember that the same person who was your mediator is going to be your arbitrator. During mediation you are encouraged to bare your sole and tell the mediator how you personally feel about every issue. He or she may already have prejudged you. He or she may not like you. That is the same person who is going to be your judge during the arbitration. Your mediator will no doubt tell you that once mediation ends and arbitration begins they will easily forget everything that went on during the mediation and start the arbitration with a fresh slate. Is that really possible?

I encourage anyone considering mediation/arbitration to ask a lot of questions. Do your homework. Understand what you are doing. If there is a dispute resolution clause in your agreement be conscious of the fact that the process may and often does get triggered at a later date. If you are about to try to resolve a dispute by using arbitration check out the proposed arbitrator. Ask for references. Get a careful cost estimate. Know as much as you can before you agree.

I do not mean to suggest that this process is not the right process for a lot of people. There are many very good mediators and arbitrators who will work hard to achieve a just and principled result at the earliest possible stage and who will do a very good job in assisting all of the participants to reach that goal efficiently. I am just encouraging you to go into the process with your eyes open.

Steven M. Bookman is a lawyer who specializes in family law with offices in central Toronto. He can be reached at sbookman@bookmanlaw.com or at 416-488-2243.

SHOULD I MEDIATE?

Many lawyers encourage their clients from the outset to enter into mediation as a means of effecting an early and relatively painless resolution to their matrimonial litigation. At times mediation is introduced as an idea worth pursuing in the middle of the court proceeding. Most separation agreements contain mediation/arbitration clauses under the heading “Dispute Resolution”. Again clients are directed to incorporate this process into their agreement after being told that it is a less expensive, more efficient and in some instances a more fulfilling process than going to court.

Mediation is a negotiation process facilitated by a third-party who is called “the mediator”. Mediation can take place with or without lawyers present.   This can be an extremely useful and rewarding experience depending on a number of factors, including the idea that both parties must be willing to engage in mediation and be prepared to accept the idea of compromise.

When mediation first appeared it was largely populated by individuals with a social work/therapeutic background. Participants went through a process called pre-mediation during which the mediator would assess their state of mind and whether they were appropriate candidates for mediation. Often one or both parties were not and the mediation was cancelled. Further, in the early stages the role of the mediator was simply to guide the discussions in the direction of compromise and settlement. A good mediator would discuss the implications of each person’s position and help them examine the consequence of compromise. When tensions escalated or someone ‘fell off the rails’, the mediator would occasionally have a short one on one therapy session to restart the process. All in all it was a successful and rewarding process.

Then something happened that should have been expected but was not. Lawyers, retired judges, retired lawyers and just about anyone else who was looking for extra income decided to hold themselves out as mediators. This created a whole subset of mediators who have no therapeutic capabilities and whose primary goal is often to resolve the legal dilemma while completely ignoring the associated emotional fallout. The result has, in my opinion, been both good and bad. Given that most lawyer/mediators are intelligent and also experienced litigators, this often works quite well and satisfies the clients. As well a large number of family law practitioners understand their clients’ emotional trauma and as mediators they make the effort to appease the angst that the participants are experiencing.

And then there are those who let their over inflated egos drive the mediation. Some are overly opinionated and overly directive and serve only to agitate the clients and alienate one or both of the lawyers. These mediators seem to view themselves in a quasi-judicial role and actually believe that their task includes advancing their own opinions of the individual client’s possibilities of success in a courtroom on each issue being mediated. In other words they are attempting to bully one or both participants into giving up their position and to agree to settle. Surprisingly there are actual advocates of this approach and it has now been given a label – the “Evaluative Approach”. This mediator sees the role of the mediator as the ultimate evaluator of each client’s legal position. This often undermines the role of the lawyer who has given advice to his or her client that is now being completely contradicted by the mediator.

In my view it is not and never will be the mediator’s role to make judicial pronouncements. That is why we often end up in front of a judge or an arbitrator. That is their job and not that of the mediator. The mediator is a facilitator of a potential settlement and the mediator needs to understand his or her job and why they are being hired. They are not there to give the client different legal advice then was given by their own lawyer. They are not hired to argue with the client or argue with their lawyers. They are supposed to be skilled manipulators and that seems to be a talent that many mediators lack. And that is why many people who are unsuccessful in their mediation have refused to return after one session. Don’t allow that to happen to you. Research the process before you agree to it. Research the mediator before you agree to use that person.

Mediation is an incredibly useful tool. Make it work for you.

On another day I will be discussing the merits of agreeing to binding arbitration – something that you should do with great caution and trepidation.

To contact Bookman law email us at zdehghan@bookmanlaw.com or call 416-488-2243

IS THERE LIFE AFTER DIVORCE?

The divorce is over. Children issues are settled, the money has been divided, you are finished with your lawyer, the final papers have been signed. What a relief! Or is it?

For many people who have finally finished with the legal process the worst part is just about to begin. A great number of recently divorced feel the sudden impact of lonliness and isolation soon after the hubub of the legal battle has subsided. What was an integral part of your life has now disappeared – and I don’t mean your husband or wife. I mean the quest for justice that dominated your existence, dominated your conversations with friends and relatives, woke up with you and went to sleep with you. Over. Finished. Gone.

How do you now refocus and move on. For some that is a very difficult task. Being involved in a legal proceeding that has consequences that are very critical to your future means that you must be closely connected to the process. Constant review of documents, frequent emails, calls and meetings with your lawyer, and court appearances can become almost an obsession. The time commitment is substantial; in some cases huge. When it ends there is an immediate need to find something to fill in the void.

You need to refocus and redefine yourself. You do not have to return to your old routines and habits. You are in control. You have control over yourself and control over the directions that your life will take. This can be, if you want it to, a  new beginning.  The beginning of a new life, the beginning of self empowerment, the potential for a world of new experiences. It is an opportunity to thrive, to make intelligent and informed decisions that will affect your future in a positive way.

Do not view your divorce as an ending. View it as an opportunity to begin a fresh, exciting experience, to redefine who you are and where you are headed.