Mediation is a popular alternative to litigation in family law.

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Mediation has become a very popular alternative to litigation in family law matters. More Ontario lawyers use mediation than B.C., Alberta, or Nova Scotia lawyers to resolve disputes, according to Canadian Forum on Civil Justice research. Mediation’s key benefits include the potential to save time and money, and the potential to maintain an amiable relationship following resolution. Litigation can take twice as long and cost twice as much as mediation. Litigation is also more likely to have a ‘winner’ and a ‘loser’ mentality, which can impact relationships afterward.

Clients who take a focused approach to mediation can also get more out of the process. Reaching agreement beforehand on items which aren’t in dispute, and focusing mediation time on issues that aren’t resolved can save time and money.

Litigation doesn’t necessarily cost twice as much as mediation, if the court’s time is used to resolve specific issues. This makes the litigation costs more manageable, because you’re identifying and narrowing the dispute.

Court becomes expensive if it’s used for the sake of it, or to get attention, rather than as a dispute resolution mechanism. Litigation isn’t more or less expensive in and of itself. Litigation is often more expensive because people use it the wrong way. The same can be said of mediation. When clients push the file across the desk and say, “here you go, sort this out,” it increases costs, because we’re now deeply immersed in all aspects of the case.

We advise parties to add structure to their mediation proceedings by narrowing the issues to be mediated as much as possible. Focusing the dispute on specific issues means the procedure to resolve them can be focused as well. This makes it faster and more cost effective, because defined parameters help manage expenses.

Mediation is also good for people on a budget, because they can proceed on a ‘pay-as-you-go’ basis. A mediator is retained, you provide your briefs, and attend for the day. If you reach a settlement, great. If you don’t, you can choose to come back another day, having a good idea how much it will cost.

This expense management element is another key benefit of mediation. If all matters aren’t resolved in mediation, the parties will at least have a better understanding of their challenges, and each other’s positions. In this way, mediation helps focus effort on the most important issues, and ensures all perspectives are heard, outside a win or lose forum.

 

Herschel Fogelman, LawyerHerschel Fogelman is the founder and principal of Fogelman Law, a family law firm in Toronto. Herschel is a Best Family Lawyer, and is listed in the Lexpert Directory. An experienced family law mediator, arbitrator, and litigator, Herschel pioneered Customized Case Management, a unique service that streamlines and customizes the processes and schedule in family law cases.

 

Retirement is a factor for support payments in separation agreements.

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A working spouse needs to consider the impact of retirement on spousal support in their separation agreement. Many support providers assume they’ll be able to reduce or eliminate their support obligations at retirement, based on reduced earning potential. Unfortunately, it’s often not that simple.

This is a conversation to be had upfront and, ideally, the separation agreement would specify that retirement is a change that will affect support. In 1994 The Supreme Court of Canada ruled that, to establish a material change in circumstances, the change must not have been foreseen or foreseeable at the time the agreement was reached. Ontario judges have, in some circumstances, ruled that retirement does not clear that bar.

If you reach a separation agreement at 55, and your employer’s mandatory retirement age is 65, your retirement date isn’t a surprise. This can be interpreted as a foreseeable change and, as such, would have to have been considered in the original agreement. The courts have also ruled that support change applications are premature when the application has been brought in advance of actual retirement. This creates a procedural barrier to resolution, and the applicant must resubmit after retirement.

This issue can even result in supporting spouses being forced to work longer than they want or had planned to continue their payments and fund their own retirement. If a party can‘t pursue a variance in advance of involuntary retirement, it can create significant inequity. Family lawyers need to advise their clients on this issue, and warn them about what is considered unforeseeable change.

The best approach for those who haven’t anticipated retirement in their agreement is to address it two or three years in advance of retirement. This leaves some time to resolve the issue and get ready for an application immediately upon retirement.

 

Herschel Fogelman, LawyerHerschel Fogelman is the founder and principal of Fogelman Law, a family law firm in Toronto. Herschel is a Best Family Lawyer, and is listed in the Lexpert Directory. An experienced family law mediator, arbitrator, and litigator, Herschel pioneered Customized Case Management, a unique service that streamlines and customizes the processes and schedule in family law cases.

 

Identifying an unsuitable case for mediation.

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It’s important to be able to recognize when a case is unsuitable for mediation Despite the cost and time-saving potential, mediation isn’t the best option for every case. In some cases, mediation can actually waste time. This is one reason why mandatory mediation isn’t ideal. Mediation is well-suited to people who want it, but not always to those who don’t.

A recent Canadian Forum on Civil Justice survey found that 89 per cent of Ontario lawyers use mediation to resolve custody and property division matters. The survey also found that mediation typically costs half as much as litigation, but results varied drastically, depending on the circumstances of a case. The average low-conflict case settled by mediation in about five months for $6,000, but high-conflict cases took almost three times as long, and an average cost of $30,000.

Cases where mediation may not be suitable usually fall into one or more of these categories:

  • Ugly conflicts: In high-conflict cases, the parties may use mediation as another ring in which to fight.
  • Binary cases: Cases which have an obvious winner and loser lack flexibility to create a solution both sides can accept. This is true with mobility cases, where the person will either be allowed to move with the child or they won’t. A creative solution may be possible, but a mediated settlement is much harder to achieve.
  • Multiple parties: It becomes more complex when third parties such as parents or private mortgage lenders, or where property issues are in dispute. Mediation still works, but the challenge is getting all parties in the same room. Without everyone present, it’s hard to make a deal.
  • Domestic violence: Many cases involve allegations, but when spousal violence has been objectively determined, it’s probably not a suitable case for mediation.

 

Herschel Fogelman, LawyerHerschel Fogelman is the founder and principal of Fogelman Law, a family law firm in Toronto. Herschel is a Best Family Lawyer, and is listed in the Lexpert Directory. An experienced family law mediator, arbitrator, and litigator, Herschel pioneered Customized Case Management, a unique service that streamlines and customizes the processes and schedule in family law cases.