Family mediation finally going mainstream: Justice Gloria Epstein
by Jana Schilder as appeared in The Lawyer’s Daily on June 4th, 2018
“There has been a paradigm shift in family law, away from the traditional adversarial role of solving family law disputes,” Justice Gloria Epstein, a judge of the Court of Appeal for Ontario, said in her keynote address to more than 120 attendees of the second bi-annual Unconference, held May 3, 2018, at the Centre for Social Innovation and organized by the Family Dispute Resolution Institute of Ontario (FDRIO).
“In the last century, no one thought about ADR [Alternative Dispute Resolution]. Lawyers had but one tool; a hammer, and every problem they had resembled a nail. Separation and divorce were seen as issues that could only be resolved by the courts. Mercifully, that is no longer the case,” she said.
Justice Epstein explained that today, only about one per cent of divorce cases end up in court and about three per cent of all family law cases go to trial. Based on her more than 25 years of experience in family law, and her entire legal career of 40 years, she expressed the view that many of even that three percent may not need to go to trial.
“In a family law trial, often even the ‘winning’ party is worse off, financially and otherwise. The family is certainly worse off,” said Justice Epstein.
“It took us a while to realize that the way to solve the vast amount of matrimonial disputes is through ADR. FDRIO members have helped us move along that path,” she said.
Justice Epstein pointed out that the trend away from court-based adjudication is affecting other areas of law as well, not just family law. But in her view, ADR is particularly well suited to family law for a number of reasons.
“At its core, a family is not about law. A normal family is about relationships — emotional, physical, and financial. Family members focus on how they feel, what they’re going to do, where they are going to do it, and how they are going to pay for it,” she told the Unconference audience.
“Family members don’t normally engage in legal discussions, unless you are part of my family — two of my three children are lawyers,” she quipped.
“So, it follows that the solution to the problems of a family lies primarily in bringing a ‘new order’ to these relationships. Sure, there is a legal framework that informs this new order but the focus is on re-structuring interpersonal relationships of a family,” explained Justice Epstein.
Mediators, arbitrators, parenting coordinators, financial consultants, and divorce coaches are well-suited to helping a family re-define its new relationships, she noted.
Unlike commercial litigation, family law cases are not funded by a corporation. Every dollar spent on family litigation is after-tax money. Every day, as legal costs climb, the financial resources available to the family diminish.
“Think about it, by the time litigants get to me, they have already spent a fortune, sometimes a large fortune,” she told the audience.
“I personally cringe at the idea that the people in front of me must write a cheque for any of the amounts I order for costs at the conclusion of family cases. But legal costs are only part of the financial impact,” said Justice Epstein. Other costs include time off work, travel costs to and from court, babysitting costs. And, of course, at the end of the separation and divorce process, having to finance two households instead of one.
Then there is another type of cost — a longer term cost — to the family’s relationships.
“In a family law hearing, much ‘dirty laundry’ is aired. Nasty things are said in open court by people about whom they claim they have once loved,” she explained.
And then a judge, who only has a superficial understanding of the dynamic of the particular family, has to make orders about such important things as which parent the children will reside with, who will make the major decisions affecting their lives, whether the matrimonial home will be sold, and how the financial resources will be shared.
And frequently the most contentious part of any separation agreement is something seemingly simple such as pick-up and drop-off of the children. It is contentious because the person burdened with the most demanding transportation obligations frequently feels taken advantage of.
“All these issues are important to the parties and they need people like you, mediators, arbitrators, and parenting coordinators, to help them settle their matter,” she said.
While you are able to legally sever your physical and financial relationships with your spouse, you will be a parent to your children, forever. Down the road, there will be graduations, weddings, and grandchildren. People need to make a choice: those events can be stressful or joyful. The determining factor in this may well be how the separation is handled. This is why mediation is so well-suited to family law because it helps preserve those important family relationships.
Justice Epstein told a story of how she was judicially mediating an acrimonious and long-standing dispute between a husband and wife. While the couple’s children were now adults, the parents still argued over the finances. While with the parties in the courthouse hallway, Justice Epstein had a chance encounter with her ex-husband, who was counsel in another matter. It was clear he had a terrible cold. Justice Epstein dashed to her office for cold medication and a glass of water and they chatted amiably about her ex’s upcoming trip with his spouse.
When she returned to the couple, she explained what had just happened.
“And I told them, ‘When I get through with you, you’ll be on hugging terms with your ex, too’,” she said. The case settled.
Jana Schilder is co-founder of The Legal A Team, a marketing, public relations and social media agency for lawyers and law firms. She also wrote the book on public relations for lawyers, available at Lexis Practice Advisor (LPA).