Family Dispute Resolution, Mediation, News & Updates
The Very Hungry Mediator
“…but he was still hungry.”
The Very Hungry Caterpillar by Eric Carle (Philomel, 1986)
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I am always hungry. If I am not eating then it is likely that I am thinking about food – unless I am mediating.
It has become a problem. Allow me to explain:
Back in the day when I was a hardcore litigator, before I metamorphosed into settlement counsel and a mediator, getting enough to eat was never problem. Court normally starts at around 10:00 a.m. — leaving plenty of time for a hearty breakfast. During a day at court, one could always count on the judge calling a mid-morning break, an ample lunch recess, followed by an afternoon break and then typically wrapping up the day by 5:00 p.m. This allowed for regular snacks and meals outside the courtroom while I finalized my submissions or just re-read the material for the day’s motion, trial or appeal. I would often pack food to take with me or I would eat at an on-site coffee shop or a nearby restaurant.
I even began to associate court in downtown Toronto with Chinese food. If I went to court, chances were good that — at some point during the day — I would be dining at one of the many restaurants that line Dundas Street West near University Avenue, around the corner from the various courthouses.
In the meantime, going on examinations for discovery only got better as the years passed from a food perspective. The various reporting facilities around Toronto each began to outdo the other in terms of putting out a big spread for customers. Given that lawyers call their own breaks during examinations, no one goes hungry. I still attend mediations as a lawyer and many mediations are held at the same reporting facilities. Since mediations have a significant amount of downtime when the mediator is occupied with the other side in a caucus, there is always time for lawyer and client to grab a nice lunch or snack down the hall.
At my firm’s offices, where we regularly host mediations, we do not offer a smorgasbord (since we do not charge extra for the use of our space), but there is always something on which to nosh and, if anyone wants something more substantial to eat, there is a restaurant in the lobby of our building.
In short, the availability of food is important as litigating is hard work, and clients get hungry too during what can be a long and stressful day.
However, when I am the mediator I can forget all about food and eating. The reason is that the mediator is always on. His is an intense, all-consuming role with no pre-set break times or meal traditions — or even a general acceptance that one is permitted to eat.
In any event, there is just no time. As a mediator, I am greeting and meeting lawyers and parties in the morning, often before the scheduled start time, and then the race begins. At the beginning of the mediation, if there is a joint session, I am busy discussing the process and ground rules, asking questions, listening intently to the answers and keeping the peace. I believe that I cannot perform these activities credibly or effectively while eating. In any event, I am not even thinking about food after the joint session and the caucusing begins. I spend hours engaging in shuttle diplomacy, darting from room to room, trying to keep the negotiations moving steadily toward a settlement and putting out the occasional ‘fire’. If I have a moment alone then I am probably spending it by updating my notes or strategizing.
I am lucky if I have a chance to answer the inevitable afternoon text from my wife asking what I have planned for dinner that evening (I am the cook of our household. This should come as no surprise).
Then there are those special times when the mediation turns into a marathon as it goes into extra hours. By this time, there is probably no food left on site (or it is stale) even if one has time to eat.
Now I am not suggesting that mediating is harder work than lawyering. It is just different. I am also not complaining, as I love mediating. When I am mediating, I am ‘in the zone’ –just not in the dietary sense. So I forget about food temporarily. My stomach might growl, but I do not notice. Yet when I reach the end of the day and the participants have left – hopefully, with a settlement in hand – I finally note that I am hungry. It is then time to grab a quick snack and finally head home to cook and eat.
I can work on an empty stomach – provided I am mediating. Yet, I have been reading about how bad it is for you (not eating regularly, that is. I am convinced that mediation is good for you). It throws off your metabolism and can lead to health problems. It is not too late for me given that I am not yet mediating full-time and I am now prepared to listen to my stomach. I also recognize that wolfing down a donut on the run between caucus rooms is not really ‘eating’. So if I am ever your mediator, please bear with me while I eat lunch and regular snacks along with you. I promise that I can listen just as well with a full mouth.
On a serious note:
While it is all fun and games to kid about feeling like you have no time to eat, there are many people who simply cannot afford to eat. Therefore, when I completed this post, I made a donation to the ‘Lawyers Feed the Hungry’ program. If you enjoyed reading this — or even if you did not –please consider doing the same by clicking here. Thanks.
Mitchell Rose is a Chartered Mediator, Lawyer and Settlement Counsel with Stancer, Gossin, Rose LLP in Toronto.
Alternative Dispute Resolution, Family Dispute Resolution, FDR Week, Mediation
Family mediation helps separating couples divorce amicably, save time and money
TORONTO, ON – OCTOBER 16, 2018 – Many Ontarians are turning to family mediation, family arbitration, and the hybrid med-arb—all forms of Alternative Dispute Resolution (ADR)—to settle their separations and divorces. Factors driving this are: clogged family courts across many parts of Ontario; the high cost of hiring family lawyers; and the perils of navigating family court as a self-represented litigant, with no lawyer.
Mediation is a well-known legal remedy for settling lawsuits in corporate-commercial law as well as personal injury claims. Corporations surveyed indicated that mediation saves them money (90%) and that it is better than litigation (81%).
The Family Dispute Resolution Institute of Ontario (FDRIO) promotes all forms of family dispute resolution, including court in appropriate cases. The week of November 19, 2018, FDRIO will host these three events in Toronto and communities across Ontario:
- FDRIO is having its 4th annual conference November 19, 2018 in Toronto. This year’s theme is “Through the Lens of Change.” Keynotes will be given by Aruna Papp (“Honour, Shame and Love: what Ontario FDR professionals can learn from a survivor of the culture of honour”) and Katherine Hensel (“Indigenous Families –Approaches to Conflict Resolution”).
- Inaugural Parenting Coordination Institute, on November 20, 2018, in Toronto at the Law Society of Ontario. FDRIO is the Ontario organization offering professional standards and certification in Parenting Coordination (PC), which helps separating couples with ongoing parenting disputes. Certified Parenting Coordinators are required to take extensive training, as parenting coordination is highly specialised.
- Family Dispute Resolution Week (FDRweek), with events for both the general public to learn more about family mediation, family arbitration, med-arb, and parenting coordination as well as events for ADR professionals. Free, public and professional events are scheduled in Toronto, Ajax, Etobicoke, Mississauga, Oshawa, Port Credit, Ottawa, among others.
For more information:
Lorne Wolfson, FDRIO, lwolfson@torkinmanes.com, (416) 777-5414
Hilary Linton, FDRIO, hilary@mediate393.ca, (416) 593-7100, ext. 291
Media Contacts:
Brian Kilgore, Senior Counsel
The Legal A Team
Mobile (416) 879-5771
BAK@bell.net
Jana Schilder, Co-Founder
The Legal A Team
Mobile (416) 831-9154
jana@janaschilder.com
Family Dispute Resolution, Resources
Risks of intimate partner homicide to lawyers, mediators, clients and families
by Jana Schilder as appeared in The Lawyer’s Daily, September 18, 2018
It is a fact that many more women die by the hand of their intimate partner than by any other means. There were 18 women killed and two men killed in Canada from January to April 2018 by their intimate partners, making a mockery of the words “I love you” and “to love, honour and cherish.”
Separation and divorce escalate risk of harm, and involvement with lawyers and the legal system further aggravates risk of a party or child being harmed or killed.
In 2015, Winnipeg family lawyer Maria Mitousis was almost killed when she opened a mail bomb that was sent to her by her client’s ex-husband. In the U.S., stories of murdered family lawyers seem commonplace, most recently Antonio Mari, shot by his client’s ex this past June, and Sara Quirt Sann, murdered by her client’s ex-husband.
“Fortunately, intimate partner homicides — of men and women — are often predictable and also preventable,” said Hilary Linton, a family lawyer, family mediator, family arbitrator, international mediation instructor and a director of the Family Dispute Resolution Institute of Ontario (FDRIO). “The problem is most people in and out of the justice system have not learned to recognize the predictors of this kind of risk nor the safety planning that can be done to minimize it.”
Here’s what we know for sure about intimate partner homicide and how separation and divorce make an uneasy situation much more volatile. Separation is the most dangerous time for a victim of violence. Consulting with a family lawyer increases the risk of murder for victims of domestic violence. As a result, family mediation and other family dispute resolution (FDR) processes are high risk when domestic violence or intimate partner violence is present.
At this year’s FDRIO Conference in Toronto, Nov. 19, 2018, Aruna Papp will give a keynote titled “Honour, Shame and Love: what Ontario FDR professionals can learn from a survivor of the culture of honour,” followed by a panel discussion that will amplify domestic violence issues.
“Screening for domestic violence — not just physical violence but all forms of coercion and control — is critical for your safety and that of your clients,” added Linton.
By way of definition, the term “family violence” includes: physical abuse including confinement and deprivation of necessities of life; sexual abuse; attempts to physically or sexually abuse; intimidation, harassment, threats, including to pets, property or third persons; unreasonable restrictions on financial or personal autonomy; stalking; and intentional property damage.
According to an Ontario Domestic Violence Death Review Committee Report (2015) for the years 2003 to 2015, 67 per cent of cases reviewed were homicides while 33 per cent were homicide-suicides. Actual or pending separation was present in 68 per cent of cases.
Importantly, a history of violence was present in 74 per cent of cases, with the top risk factors identified as: obsessive behaviour; a depressed perpetrator; escalation of violence; prior threats to commit suicide; prior threats to the kill victim; an unemployed perpetrator; and a victim who had intuitive sense of fear that something terrible would happen to her (him) soon. But equally importantly, there was no known physical violence in 26 per cent of those cases. Which means family law professionals should learn to recognize all the significant risk factors, said Linton.
There are four patterns of intimate partner violence that have been identified by researchers:
- Situational couple violence is the most common type and it is perpetrated equally by both men and women who have poor ability to manage conflicts or anger. Situations or arguments escalate on occasion into physical violence. Most often, situational couple violence involves minor forms of violence. Fear of the other partner is not present.
- Separation-instigated violence, seen equally in men and women, happens when the couple has no prior history of violence. Rather, the violence is triggered by the traumatic separation, public humiliation, allegations of abuse, or the discovery of a lover in bed. As a result, violent acts are uncharacteristic and unexpected. Because they are atypical and sporadic, they leave the victim of violence confused, afraid and uncertain.
- Coercive control is when violence is embedded in a pattern of power and control. Control is comprised of intimidation, emotional abuse, isolation, minimizing and blaming, use of children, economic abuse and threats. Abusers use any combination of tactics that work. A primary characteristic of the victim is fear. Coercive control is perpetrated mainly by men (in heterosexual relationships). There is a high likelihood that the victim will be injured, severely injured or even killed.
- Violent resistance is the immediate, reflexive reaction to an assault intended to protect the victim, the couple’s children, or other family members. Violent resistance is often ineffective. Some research shows women who defend themselves are twice as likely to be severely injured as those who do not.
This is part one of a series.
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). Reach her at jana@janaschilder.com
Alternative Dispute Resolution, Family Dispute Resolution, News & Updates
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).
Alternative Dispute Resolution, Family Dispute Resolution, Mediation, News & Updates, Social Work
What is the Relationship between Social Work and ADR/FDR?
by Vinita Puri
My name is Vinita Puri. I am a proud Social Worker and Family Mediator who has been working in the social service field for nearly 20 years. I have always been passionate about social change and restorative justice processes. Growing up in a South Asian home, I revered the concept of “ahimsa” or nonviolence. Violence is any type of harm done; intentional or no intentional to Self or Others. My personal values therefore align with Social Work and ADR principles and processes.
Social Workers add great value to the field of ADR (especially FDR). The training and skills I have acquired in the areas of bio-psychosocial assessment; interpersonal communication; psycho-educational treatment and therapeutic alliance building have helped me to foster healthier communication and dispute resolution between parties. The goal of any ADR process is to prevent or reduce further harm to self and others. This requires each party to reflect and evaluate on the nature of the conflict and the psychological manifestation of beliefs and thoughts which evoke emotional reactions and influence the way in which conflict arises. Education is fundamental to any Social Work practice. As the parties develop these skills, they gain confidence and motivation to apply them. Hence, these individuals will likely have productive and effective mediation if they developed conflict resolution skills beforehand.
Social Work practice provides a wide range of psychotherapy and psycho-education techniques to challenge cognitive distortions and wrongful appraisals of reality. Overtime, these individuals may be able to gain insight and awareness into their emotional responses and behavioural patterns. Social work within the mediation process can motivate clients to increase their awareness of how they may contribute to their relationship problems. This involves utilizing a strengths based, anti-oppressive approach to counseling which involves non-judgmental, neutral and empathetic support. Social workers see themselves as “helpers” not “experts”. In fact, a core value of Social Work is self-determination. In other words, individuals are the “experts” of their own lives and we are here to provide unconditional positive regard to empower individuals to creatively problem solve and develop resources to resolve their own problems.
In my clinical experience, I have found that victims and perpetrators of violence (physical, emotional, spiritual, social, economic, etc.) often get stuck in cognitive distortions and unhelpful thought patterns. It is the narratives that they have captured through emotional memory and the processing of their past traumas which influence the ways in which they appraise situations and ultimately how they behave. As a result, they continue to experience similar conflict and relationship discord and get “stuck”. Successfully addressing complex psycho-social problems can involve evidence based treatment protocols such as Eye Movement Desensitization Reprocessing (EMDR) and Dialectical Behavioural Therapy (DBT) to facilitate the processing of unresolved emotional traumas. Healing needs to occur within individuals so that they can relate to others in healthier ways. Individuals who do not take the time to reflect on their past and heal from old wounds get stuck in cognitive distortion patterns and continue to use infective coping strategies (e.g. substance use, self-harm, etc.) which can only serve to exacerbate problems.
In sum, I feel honoured and privileged to be a Social Worker who is also an ADR professional. I truly believe conflict is inevitable and that most people want to prevent harm to themselves and others. Despite this, many individuals find themselves chronically engaging in high conflict relationships. There are a range of biological, psychological and sociological risk factors as well as protective factors that can influence the ways in which individuals appraise the problems the face and the solutions that they are able to generate. As a Social Worker, I use comprehensive clinical bio-psychosocial assessment to explore and identify the root causes of conflict and distress that are causing harm to the individual and his/her relationships. With this awareness, I can work towards motivating clients to learn skills for effective communication and self-regulation. Developing these skills is essential to assuring the mediation process is successful.
As the Clinical Director of Relationship Boutique Inc., I have the opportunity to develop programs and services that integrate these values. The values of Social Work and ADR align with my personal and spiritual values of “ahimsa” or non-violence. For more information, please visit relationshipboutique.com