Category Archives: Family mediation

Marital Mediation, say what?

In the post yesterday featuring the UK Ministry of Justice’s recently released video on family mediation, a distinction was drawn between couples counselling and family mediation (i.e., divorce or separation mediation).

Patti Murphy, Divorce, Couples and Family Mediation

Patti Murphy, a family mediator based in Brooklyn poses the questions:

But what if the couple didn’t want an archaeological exploration of past family behavior or accept that the issues between them were so insurmountable that the only answer was to walk away?  Then what?
The good news is – there is another option: Couples Mediation.  It’s really more of a new application than a new process.  Mediators have been helping couples resolve conflicts for years … but it turns out these same skills can be used to avoid, rather than ease, divorce!  This process, (also called “Marital Mediation” for officially married couples) is helpful for those couples that want to stay together.

In my own view, unlike therapy, it’s not about fixing or curing people, but rather it’s about supporting conversations that can bring both people greater clarity on their situation, on the options they have, and on what to do to move forward.

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UK Ministry of Justice video on family mediation

I have a few glosses² to add to this:

  1. Contrary to the video, I prefer the objective of mediation to be stated as a process in which people can explore, with the support of a trained, impartial third person, the possibilities for resolving their differences. In other words, the objective of the process is whatever the clients say it is, rather than implicitly ‘agreeing arrangements for the future’;
  2. In the Canadian and Ontario contexts, background information and resources can be found at the websites of the federal Department of Justice and the Ontario Ministry of the Attorney General; and
  3. Among other websites in Canada that can help with finding a mediator near you are the Ontario Association for Family Mediation and its Ottawa chapter.

OAFM logo

 

 

Family mediator’s list of myths and misunderstandings

Florida attorney and family mediator, Diane Danois, recently set out a number of myths and misunderstandings that may affect decision making when separating and divorcing:

Diane Danois

#1 Myth: Using a mediator precludes me from consulting with a lawyer.

#2 Myth: The first step is filing and “serving” my spouse.

#3 Myth: I have to resolve all of our issues in mediation.

#4 Myth: I have to be in the same room as my spouse.

#5 Myth: I won’t be able to consult with experts (accountants, realtors, etc.) to help me make final decisions. I will be all alone in my decision-making, and won’t get what I deserve.

#6 Myth: I will be getting legal advice from a mediator, instead of a lawyer.

None of these statements is correct in Florida (or in Ontario for that matter) as Danois explains in her recent article on The Huffington Post.

How mediation can help in transborder parental child abduction

Sabine Walsh

Sabine Walsh is a certified International Family Mediator based in Ireland and reports on how mediation can support parents in cases of international parental child abduction, “where one parent brings the child or children to another country, often their country of origin, without the other parents’ consent“.

Mediation however offers a number of specific advantages to parents in the context of a child abduction case. One of these relates to the scope of the dispute. In general, in cases taken under the Hague Convention on the Civil Aspects of International Child Abduction (1980), to which 86 countries are parties, the only issue that can be decided by the court is whether the child or children should be returned or not returned to their state of habitual residence. This means that the court has no jurisdiction to decide any other matters relevant to the future of the family, such as custody, access, maintenance or any other matters that might require a decision in order for the family to move on. A new set of proceedings to decide such matters must be commenced in the relevant state, depending on where the child and the parties will live. This means, in effect, that at least two sets of legal proceedings in two different courts, possibly in two different countries will be required to regulate the circumstances of the family after the abduction. In mediation however, the scope is determined by the parties, not by legal rules, and therefore all matters relating to the dispute can be addressed. In practical terms this means that the parents can address not only where the child or children will live, but all other arrangements such as contact with the non-resident parent, a parenting plan, and financial matters. Not only will this save the family time and money, but it can significantly reduce the stress on everyone, in particular the children. (emphasis added)

She also identifies best practices in international family mediation:

The first hallmark of international family mediation is that it is carried out by co-mediators. The co-mediation team should ideally consist of one male and one female mediator, one from each of the parents’ countries, and one being from a legal and one from a psycho-social background. This is not always achievable but at the very least, one mediator should be from each of the parties home countries. In an Irish-German family, for example, one mediator should be Irish and one should be German. Both joint sessions and caucuses are used in this type of mediation, and sessions are usually scheduled over a period of three days approximately. Very importantly in cases of child abduction, arrangements are often made for the left behind parent to have contact with the child at some stage during, though not actually in the mediation. The voice of the child or children will usually be brought into the mediation, either directly or by means of an interview with a third party such a psychologist or social worker. The parties legal representatives are actively involved at all stages, particularly when it comes to drafting the agreement, and translators or interpreters may also sometimes be used, though it is generally preferable if a common language can be found to mediate in.

You can read Walsh’s entire report here.

Related articles
  • Overseas child abductions on the rise (guardian.co.uk)
  • Stolen Scottish children let down by law (express.co.uk)

Family law understood as a system of coercion

In an opinion piece in Minneapolis’s Star-Tribune last month, the Hon. Bruce Peterson, district court judge inHennepin County, Minnesota, writes that it is time “to consider taking divorce out of the hands of lawyers and judges and putting it in the hands of the parties and whatever advisers they choose.”

The worst feature of the current system[family law] is the conflict it generates. We call it an adversary system, but a better term would be a coercion system. The parties bash each other in order to persuade the judge to coerce the other person to do something they don’t want to do.

A wise friend of mine, a psychologist, once told me that the normal response of a healthy adult when faced with coercion is to resist. Sensing impending coercion, people often come to court defensive, anxious, with their heels dug in. Despite thoughtful, creative strides by Minnesota courts to reduce conflict, the specter of coercion still haunts divorce cases and promotes conflict. And it is conflict that hurts children, regardless of the custody label.

Dan Simon, a transformative mediator who practises in the Twin Cities of Minnesota, contacted Judge Peterson:

In response to my email he wrote, “I think of transformative mediation as one of the hopeful tools in this field and believe it will have an ever more important role to play.” That email led to an exchange that resulted in Judge Peterson visiting my office, where I showed him a video of myself mediating a parenting dispute. Later he emailed me, “Thank you again for taking the time to show me your process. I am very impressed at the discipline and subjugation of ego it requires. Let’s stay in touch, big changes are coming.”

Transformative mediation connected with courts?

With reference to this question, here’s an excerpt from a guest post that appeared a couple of days ago on Dan Simon’s blog:

There are times when we are asked to take cases that the judges have previously heard. The judges know these cases will be difficult, and there is very little that they can do to find a lasting solution. These repeat cases are not really about the auto repairs, the shared driveway, the broken fence, the daycare contract or the loud noise. The problem is the crisis in the interaction between the disputants. They are not able to talk to one another so they call the police or file a suit. When given the opportunity to sit down with the other in mediation, transformative mediators support the participants’ conversation in ways that enable them to regain their own strength and clarity to make decisions and their ability to respond to one another in a way that allows them to move forward.

Some people feel that transformative mediation’s lack of apparent structure precludes ordered progress. Actually, transformative mediation does have structure in which participants are introduced to the context of the mediation, explore the situation and possible options, deliberate and make informed decisions. Transformative mediators support participants as they exercise self-determination in how, and in what order they wish to work through this process. Our experience would suggest that this takes no longer than in other mediation frameworks.

Read the whole blog post here.

Is Mediation Confidential in Ontario?

As Rick Weiler notes in a December 22 post on the Kluwer Mediation Blog, the issue of mediation confidentiality “arises before the Courts from time to time and we are fortunate to have the recent, well-reasoned decision of Madam Justice J. Mackinnon of the Ontario Superior Court in Johnston v. Locke et al.”

The ruling was on an objection to the admissibility of an email written by a party during an ongoing mediation. The Court ruled, correctly in my view, that the communication was covered by settlement privilege and therefore inadmissible. The decision provides an excellent summary of the Ontario law in this area as it stands today and rather than paraphrase it, I urge you to read the full decision [...]

Following Rick Weiler’s advice, I will not attempt to paraphrase the decision either, all the more so because I am not in any sense qualified to do so, not being a lawyer myself.  I would simply note that one of the matters dealt with in the decision is the jurisprudence on settlement privilege as a class privilege, and as a privilege that is established on a case-by-case basis.

The difference in approach affects the burden of proof. If mediation is part of the settlement privilege, the party seeking disclosure must establish that the circumstances fall within an exception such as to prove the existence or terms of a completed settlement agreement. On the other hand, with a case-by-case privilege approach, there is a presumption of disclosure unless the party seeking privilege can establish that the Wigmore criteria have been satisfied.

Justice Mackinnon rules that “[a] case by case analysis does not adequately support the policy underlying settlement privilege”, and she cites a summary of the policy interest:

§14.313   It has long been recognized as a policy interest worth fostering that parties be encouraged to resolve their private disputes without recourse to litigation, or, if an action has been commenced, encouraged to effect a compromise without resort to trial.

§14.315   In furthering these objectives, the courts have protected from disclosure communications, whether written or oral, made with a view to reconciliation or settlement. In the absence of such protection, few parties would initiate settlement negotiations for fear that any concession they would be prepared to offer could be used to their detriment if no settlement agreement was forthcoming. (In Bryant, Lederman, & Fuerst, The Law of Evidence in Canada, 2009, p. 1030)

Again, as Rick Weiler urges, the full decision should be read.

“Transformative Mediation for Divorce: Rising Above the Law and the Settlement”

Dan Simon

The website mediate.com recently published the above-cited article by Dan Simon of St. Paul, Minnesota.  Simon, who was trained as a facilitative mediator, has embraced the transformative approach to mediation in his work on divorces, parenting differences, real estate issues, employment cases, business disputes, and neighbor to neighbor conflicts.

The article is excerpted from TRANSFORMATIVE MEDIATION: A SOURCEBOOK – RESOURCES FOR CONFLICT INTERVENTION PRACTITIONERS AND PROGRAMS” (J. P. Folger, R.A.B. Bush, & D. J. Della Noce, eds.), NY: Association for Conflict Resolution & Institute for the Study of Conflict Resolution, 2010.  It can be ordered online right here.

To read Simon’s complete chapter in the Sourcebook, click here.  Here is Part 1 of an interview with Dan about his transformative practice that appeared on YouTube a couple of years ago.  And here is Part 2 and Part 3.   here.

Supreme Court of Canada rules on common-law relationships

Supreme Court of Canada building, Ottawa, Onta...

Supreme Court of Canada (Image via Wikipedia)

On Friday, 18  February 2011, the Supreme Court of Canada handed down unanimous rulings on two cases involving estranged common-law couples.

According to the Globe and Mail,

…the Court emphasized that when one partner has contributed substantially to a business, property or the success of the other’s career, they should gain a benefit that properly reflects their contribution.

[...]

“In my view, where both parties have worked together for the common good, with each making extensive, but different, contributions to the welfare of the other and, as a result, have accumulated assets, the money remedy for unjust enrichment should reflect that reality,” Mr. Justice Thomas Cromwell wrote for the majority.

“The money remedy in those circumstances should not be based on a minute totting up of the give and take of daily domestic life, but rather should treat the claimant as a co-venturer, not as the hired help,” he said.

[...]

“The legal consequences of the breakdown of a domestic relationship should reflect realistically the way people live their lives,” he said. “It should not impose on them the need to engage in an artificial balance sheet approach which does not reflect the true nature of their relationship.”

For a lawyer’s review of one of the cases decided (Kerr v. Barranow), see this blog post by Andrew Feldstein, a family law specialist in Toronto.

 

Celebrate Family Mediation Day in Canada

Celebrate it by taking the time to watch this video with Justice Harvey Brownstone interviewing a lawyer-mediator and a non-lawyer mediator:

Family Law Mediation – Family Matters, posted with vodpod