My Transition to Mediation
In 2010, I somewhat reluctantly attended a seminar on the topic of how judges should plan for and cope with their inevitable mandatory retirement upon reaching the age of seventy-five. Thankfully, it was the beginning of planning for a new professional approach for myself.
For some of my fellow judges, retirement was welcome, but for others like myself, it was not desired. I had spent over forty years on the Bench and I appreciated the challenges of being a judge specializing in family law.
With my colleagues on the Family Law Bench and Bar we had lived through major changes in family law including the development of the Unified Family Court which presently serves about forty percent of the population in Ontario. I believe that there are plans to further extend this Court to most, if not all, of the province.
One of the important procedural rules first implemented in the Unified Family Court in 1977 was the requirement of case management with judicial involvement in settlement conferences involving the parties and their counsel. However successful this process has been, I had always been concerned that this process does not allow judges enough time to deal with complex issues as they try to assist parties to work out reasonable settlements. There has always been a lack of judicial complement to satisfactorily complete this pre-trial settlement process, which can take several hours for each difficult case.
At the retirement conference, the discussions led by the speakers indicated that in order to adjust well to my retirement, it was important to work out a plan ahead of time. After giving it some thought, I decided that I would try to build up a modest mediation practice using the settlement techniques that I had learned on the Bench.
My first steps toward becoming a mediator were to read a few articles and books on mediation, and to speak to counsel about mediation styles that they and their clients preferred. I became quite aware that the traditional judicial approach in mandated family law settlement conferences was not always welcome as it was often too evaluative and too judicially controlled.
It was then necessary for me to learn what was expected of a family law mediator and so I attended a mediation course presented by Richard Shields, Antoinette Clark and Darlene Murphy. They stressed the requirement of the neutrality of a mediator in the process, the necessity of hearing from each party as well as their counsel, and of the importance of ensuring that each party is capable of negotiating towards a settlement without any duress or fear of future physical or emotional harm.
Generally speaking, the mediator’s task is to encourage constant communication between all parties, without judging the validity of their positions. A mediator is meant to help the parties narrow their differences and to encourage them to make offers to settle with a view to enabling them to ultimately settle their differences.
I discussed my future with a few friends, lawyers and colleagues and concluded that it would be wise to join a law firm which supported the use of Alternative Dispute Resolution (ADR). The late Eugene Fedak, a retired Superior Court Justice encouraged me to contact the firm Ross & McBride LLP, with which he was then associated as a mediator. I then met with Andrew Spurgeon, a partner of Ross & McBride, who encouraged me to practice mediation of family law and estate issues, in association with the firm.
When I turned seventy-five years old on November 21, 2012, I ceased to be a judge. Within a few days, I commenced an associative relationship with Ross & McBride. Some short time later, I also became an associate with the ADR Chambers in Toronto and joined the ADR Institute of Ontario.
I have been now working as a mediator for over three years. My sessions with Shields, Clark and Murphy were very helpful to me as I was developing my mediation skills.
Here are some useful skills and ideas developed in my time as a mediator that I can share:
- It is essential that the mediator prepare a contract or contracts outlining the detailed relationship between the mediator, the clients and their counsel. No mediation should take place without an agreement signed by the parties and the mediator.The agreement should spell out the exact nature of the mediation, clearly outline what documents and briefs the client must provide to the mediator and the timeline within which such materials must be provided.
Some parties may desire an evaluative mediation wherein the mediator spells out the probable outcome of the case if it goes to court. In some cases, parties may benefit from hearing an opinion as to what might happen in the court room from an experienced source.
The traditional approach however, is to have the parties work out their own agreement on the issues in dispute with the help of a neutral mediator.
The agreement should spell out the fees payable to the mediator for a full day mediation or a half-day session and it must also stipulate the hourly fees payable to the mediator for his or her preparation.
I attach as Appendices “A” and “B”, the agreements that I would normally use for mediations and evaluative settlement conferences. I have borrowed in part from various other similar agreements that I have seen as I drafted these contracts.
- I will not conduct a mediation unless all parties are represented by counsel. Counsel play a significant role in advising their clients as to the purpose of the mediation process and what is within the appropriate ranges of settlement for the various issues in their case. While the parties are free to negotiate a settlement that may be outside the norm at law, it should be noted that should the agreement be brought before a court, such as in a divorce application, the court may not grant the divorce until the submitted agreement is modified to conform to the acceptable family law. The following are two examples of circumstances where a court may require an agreement to be modified: an agreement for year on year off custody order for children where the parties live far apart, or agreements for the payment of child support until a child reaches a certain age. Having counsel advise the parties during mediation or arbitration will help prevent inappropriate settlements from being reached in the first place.
There have been times in the past when I have attempted to mediate where one party is self-represented. It is difficult to preserve an image of neutrality in such circumstances, as there is a temptation to assist the party without counsel or to intervene where the unrepresented party becomes angry.
- In a court proceeding, as earlier noted, a judge presiding in a settlement conference has a very limited time to deal with each case. Not much can be done in an intensely contested matter in an hour or so. On occasion, a Judge will be able to provide an assessment of what the outcome is likely to be at trial. Generally speaking however, in order to be successful, a mediation of a complicated case requires far more time in order to ensure the parties have sufficient opportunity to speak to the mediator in order to communicate their feelings on various issues. It is also desirable to allow counsel ample time to speak with their clients to prepare appropriate settlement offers.
- Why should a client opt for mediation as opposed to going to court? Mediation offers the parties in a family law case an opportunity to settle their affairs in a quick and relatively inexpensive way subject to the parties producing all of the required documents in a timely manner.
In a contested court proceeding, each party must first attend a Mandatory Information Program (MIP) session (regardless of the fact that most litigants have counsel to explain the court process and the availability of mediation resources for them). Once an application has been served on the other party, in order to bring a motion for interim relief, a case management conference must be scheduled and held before a judge. Then the motion itself must be organized and heard. Finally, a settlement conference must be set and held, and if no settlement is achieved, the case must be put on a trial list. Often a trial management conference will also be scheduled to occur before trial.
These steps are very expensive and are a source of frustration for litigants who are not wealthy. Often, cases settle when the parties are out of funds to pay their counsel to proceed further to trial.
The mediation process can be simpler and cheaper than the usually lengthy court process. The mediator will set the date with counsel and, unlike in a court setting there will be no need to wait for other cases to be dealt with at that time. If the parties make their productions as they have agreed to, the mediator will be available as scheduled. The cost of mediation will be far less than a matter not settled at an early stage in the court process.
- After three years in mediation, I have developed the following mediation process, which I apply for most matters:I will first meet with the clients and their counsel all together and outline how we will proceed. I then ask each counsel to briefly outline their client’s case, following which I ask the clients if there is anything they wish to add. This assumes that the clients can be in the same room together.
I then meet with counsel to organize the process of drafting offers to settle. Each counsel will meet with his or her client after those meetings. I will then meet privately with each lawyer and his or her client (a caucus).
It is important in each of these private caucus sessions to listen to the client and to hear his or her sadness and anger over the separation and the disputes between the parties. At some point in either this or another session, the point may have to be made that the client is paying for the mediation and it is in his or her best interest to approach this settlement process with his or her head rather than his or her heart. Hopefully after several caucuses we will eventually work out a final agreement in writing, signed by all parties and their counsel. This settles the case.
- Traditionally, mediations are held on a confidential basis. This means that all communications between parties and the mediator cannot be disclosed to the public. The agreement to mediate will outline the details of this but it will also contain provisions stating that there are times where a mediator is not bound by confidentiality. The agreement will state that the mediator may actually have a duty to disclose to a Children’s Aid Society when he or she suspects that a child is in need of protection, and also that he or she should disclose to the police or a Crown Attorney where it is believedthat a party is about to commit a serious criminal offence.Where it is necessary to file the settlement in a court, the agreement must be disclosed to the court.
Confidentiality may be important to protect a party’s commercial or property interests and also his or her reputation. It also encourages the parties to be open to achieving a settlement rather being concerned that what they say will be repeated in a court.
I would not accept an arrangement to mediate in an open or non-confidential mediation as it may involve my attending in court as a witness to testify as to what happened and what was said in the mediation sessions. An open mediation may also serve as a discovery process by either or both parties aimed at gathering evidence rather than pursuing a settlement.
- In preparation for mediation, it is important that I receive the briefs of each lawyer outlining his or her client’s case and the applicable law. It is essential for me to read all of the submitted material and be prepared to deal with the issues at the mediation rather than having to spend time during the mediation being educated as to what the case is about.
In short, the mediation process is a way to expeditiously resolve family disputes. For parties who are not wealthy, it is appropriate to pursue mediation where settlement discussions are breaking down. Husbands and wives might insist that their counsel consider mediation where they have some confidence that all of the material necessary to settle a case can be or has been produced. It also may sometimes be appropriate to consider mediating a matter in the middle of a court proceeding.
Prepared by The Honourable David M. Steinberg
Assisted by Meredith Baker