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 firstname.lastname@example.org
By: Matthew Krofchick CPA, CMA, CBV, CMC, CFF
As more family law cases have started using alternative dispute resolution techniques – from mediation to the collaborative approach – the role of the business valuator has had to adapt accordingly. One of the most significant changes has been that family law clients are jointly retaining business valuators more frequently. The benefits to a joint retainer are typically three-fold:
- There is a savings to the client in that only one business valuator is retained, generating only one report, without the need of a second valuator and their rebuttal/critique reports.
- Both clients have the opportunity to direct the business valuator and to provide them with information.
- The spouse that is not involved in the business will tend to get better access to information than they would if both parties had each retained their own experts.
Now, because there’s no such thing as a free lunch, a joint retainer does come with some potential down sides but none of them should present an insurmountable challenge to the assignment.
For starters, the two parties may not agree upon the facts or scope of the project. So, whenever possible their lawyers should help define the scope, so that both sides have an understanding of what kind of information they can expect when the assignment is completed.
With respect to a disagreement about relevant facts, the onus should be placed on the business-owning spouse to provide evidence of their position so the business valuator can have something tangible to rely upon. There may be instances where the business valuator is asked to provide multiple scenarios addressing each party’s concerns so that the parties can either see what differences these competing fact scenarios make or to allow a third party to determine which set of facts are correct.
Another common roadblock we encounter is where one spouse may want to engage the valuator to provide additional services the other party doesn’t consent to. It is therefore important from the onset of the engagement that both parties agree as to whether the business valuator can provide other independent services to either spouse during or after the engagement and if there are any limitations on those services. Since business valuators are independent third parties there is no conflict of interest from their perspective.
A third common source of friction is in who is included on valuator-client communications. Some clients may wish to not be copied on communications with their ex-spouse, so it is important to establish ground rules as to who gets copied on all correspondences and who doesn’t.
Lastly, it is important to have a mechanism for dispute resolution in the valuation process whether that is one side not wanting to finalize the report, withholding information, etc. By affirming how these will be dealt with in advance the parties have a guidelines on how to constructively deal with obstacles and overcome them.
In all, the benefits jointly retaining business valuators in family law assignments are both real and significant. While the process does pose additional challenges, these challenges can be addressed and mitigated by establishing firm guidelines at the start of the engagement so that both parties can reap the rewards the process affords.
As a mediator who has provided internships in mediation to both legal and mental health professionals for many years, I frequently come across a common assumption that interns from both professions tend to make at the onset of their training.
Initially, interns from both backgrounds, would only choose to work together in a mediation when there is a need to combine different areas of knowledge. For example, mediators who have a legal background assume that they would only involve a mental health professional to help with a parenting plan. Alternatively, mediators with a mental health background assume that they would only involve a lawyer mediator to assist with the financial aspects of mediation.
However, there is so much more that partnering can offer to the parties in the mediation process.
A co-mediation partnership can be useful in high conflict cases where parties struggle to accept and work with the neutrality of the mediator. When parties are locked into a dynamic of attempting to get the mediator to align with them, two mediators allow for parties to be supported by one mediator at any given time without a rigid alignment forming. Thus the mediation team as a whole, can preserve its role of neutrality as between the parties and yet the parties feel individually supported when necessary.
A mediation partnership also allows the mediators to double caucus so as to contain the volatility between the parties in the room. With this kind of dynamic, it is helpful not to leave either party alone for an extended amount of time. Each mediator can debrief with each client and coach them to return to a joint session in order to voice their views in a way that opens further dialogue.
Often these kinds of high conflict mediations are so exhausting that partnering in the process allows for each mediator to take a necessary pause to gain perspective while the other mediator does the work. It is also helpful for the co-mediators to occasionally caucus alone together in order to regroup and make meaning of any new developments that have emerged in the room, which often can happen.
Each mediator can also share the responsibility to take notes, allowing the other mediator to do the work. The process of note taking is especially important in open mediation, when the summary notes of the mediation could be admissible in legal proceedings.
Partnering as co-mediators can be most powerful in assisting mediating parties to develop insight into how to have a constructive conversation with one another.
The essence of my mediation style is to assist the parties to have a constructive conversation together. If they are unable to do so, mediation often devolves into a negotiation where the mediator brokers a deal in a very directive way, similar to what a Pre-trial judge would tend to do. The parties have abandoned their willingness to struggle if necessary, to communicate directly with one another and at some level they have abandoned their control of the process.
If the parties are committed to having that “difficult conversation” together, two mediators can provide intense coaching for the parties to relearn how to communicate in a way that allows their dialogue to open into further dialogue as opposed to shutting it down. This approach requires the parties to take a reflective stance on the nature of their earlier conversations together and to take personal responsibility to change their part of the dialogic process.
Two mediators can model this kind of respectful dialogue together; they can actively listen to one another, reframe what the other has said and even model respectful disagreement.
I have had the good fortune to work with three very talented and competent social workers over the last fifteen years who have not only played the role of child consultant in parenting mediations with me but they have also partnered with me as co-mediators on many occasions.
In all cases, we have developed a deep partnership that has been built on spending a lot of unbilled hours together, debriefing after mediation sessions and preparing for those challenging sessions ahead. We work together reflectively, taking the time to understand how a session went and how we might have handled it differently. We work to maintain clarity about the roles we intend to play in a session but we work not to be enslaved by them.
In this way, we continue to work toward implementing a seamless flow of work in the room where each co-mediator trusts what the other is doing and where either mediator can move spontaneously in a new direction if necessary.
Developing partnership in this way immensely broadens the repertoire of skills that you can offer to parties in mediation.
You move beyond simply combining your different areas of expertise and you begin to tap into your complementary strengths as people. This possibility is what I hope to leave with my interns as they go out into the world to mediate.
By Margot Hallman (PUBLISHED IN THE ADR Institute Newsletter April 2010)
Mediation is a strategic, focused, fully informed and balanced process of negotiation. It is a ‘safe place to have difficult conversations’, meaning difficult emotions are accepted for what they are. I suppose this may be challenging to lawyers uncomfortable with or unskilled at handling strong emotions.
Mediation is very much a process of strategic negotiation. Hard bargaining is permitted. Taking positions is allowed. Bargaining with the strength of one’s legal rights, and taking responsibility for one’s legal obligations, is encouraged. Full, sworn financial disclosure is a must. Legal advice on process and outcome is always promoted and supported. In fact, we don’t let our clients reach binding settlements here unless their lawyers are present.
Mediation is a process that takes each person’s procedural needs into consideration. Each meeting is designed to make each person feel as safe and comfortable as possible. If that is “touchy-feely”, then we should be doing a lot more of it, because it leads to strong, balanced, voluntary and enduring settlements.
We do not countenance bullying in any form, not by the parties, not by the lawyers, not by the mediator.
Good mediators do a lot of research, reading, reflection and self-analysis. I litigated for 15 years and know that mediators work at least as hard as lawyers, sometimes harder, because we have two clients to satisfy. We work with two people who are vulnerable, damaged and afraid of their future. Whether they have lawyers or not, almost all clients have these fears. Good mediators definitely try to empower both parties to negotiate well with confidence, with the support they need, with full knowledge of the strengths and weaknesses of their settlement alternatives, and with full information and advice.
We know as well that clients who are living with abuse and violence are at the greatest risk of being harmed when they are separating– whether they have lawyers or not. Most family mediators are trained to identify, assess and manage risk far better than most family lawyers are. This knowledge and experience, which supports both parties because often they are both “victims” of some kind, helps us provide negotiation processes that can feel better and therefore work better for both parties.
Mediation-arbitration (med-arb) has become an increasingly popular dispute resolution mechanism for people whose disputes are ongoing and highly conflicted. This is a good process choice for parties who want a private process that is tailored to meet their needs.
The mediation is often highly successful and satisfying for both parties, who have often been through years of conflict, often in the courts, and who have often paid tens of thousands of dollars in legal and other fees. It is often surprising how ready and motivated people will be to settle after going through this much anguish, stress, time and money.
In the event that the mediation does not result in an agreement, the parties will then begin a separate and distinct arbitration process. The goal of this part of the process is not to reach a settlement, but to ensure that each party has an opportunity to make his or her case to the arbitrator and respond to the other person’s case.
VOLUNTARY vs. MANDATORY
One of the challenges with mandatory mediation is that it removes voluntary participation. One of the fundamental elements of successful dispute resolution. Also, it puts victims of violence in a no-win situation by forcing them either to publicly disclose the violence in a process that may not be sufficiently resourced to keep them safe– which could put victims and children at risk– or to participate in a potentially dangerous process without disclosing it, for fear of the consequences of disclosure.
Screening is a long-established first step in mediation; Ontario’s accredited family mediators are required to do it by their Standards of Practice. Screening, however, is new to arbitration.
Screening is a simple concept. It’s purpose is to ensure that parties choose the process that is best suited to their personalities, circumstances and needs. The assumption is that the professional— the mediator or arbitrator– has a responsibility to make reasonable enquiries because he or she is in the best position to make this assessment. What constitutes a ‘reasonable’ enquiry is different in mediation than in arbitration.
Screeners are looking for anything that might make one or both parties feel particularly vulnerable. This includes mental illness; drug or alcohol dependencies; physical illness; challenging personalities; intense anger or blame; a history of domestic violence; depression, and so on. The screener is not going to judge or blame a party, nor is the screener going to conduct a clinical investigation. They are only going to find out what each person is worried about, and assess whether the process can be designed to address those concerns.
Reproduced with permission, (c) Riverdale Mediation Ltd.
Click here to download a printable version of the Questions and Answers
What is Collaborative Practice?
Collaborative Practice has three key elements:
- The voluntary and free exchange of information
- The pledge not to go to court
- A commitment to mutual respect and co-operation
What is the difference between Collaborative Practice and Mediation?
In mediation an impartial third party (the mediator) assists you both to negotiate and helps you try to settle issues. However, the mediator cannot give either of you legal advice or be an advocate for either side. If you each have lawyers, they may or may not be present at the mediation sessions. If the lawyers are not present you can consult with them between sessions. If you reach agreement, the mediator prepares a draft agreement for review and editing by both you and your lawyers.
Mediation is often used by couples with relatively low conflict who can negotiate without their lawyers present. Collaborative Practice can be used by couples experiencing low, medium or high conflict or trust issues, who want the support of their lawyers and other professionals during the negotiation sessions. Collaborative professionals, who have training similar to mediators, help assure a balanced process that’s positive and productive. When agreement is reached the lawyers prepare a draft agreement for review and editing by both of you.
Both Collaborative Practice and mediation rely on voluntary, free exchange of information and commitment to resolutions that reflect the interests of both spouses. If mediation doesn’t result in a settlement, you may choose to use your lawyer in litigation, if this is what you and your lawyer have agreed. In Collaborative Practice, both you and your lawyers sign an agreement focusing everyone on resolution. It specifically states that the Collaborative lawyers and other professional team members are disqualified from participating in litigation if the Collaborative process ends without reaching an agreement. Your choice of mediation or Collaborative Practice should be made with professional advice.
What is a Collaborative Team?
A Collaborative team is the combination of professionals you choose to work with you to resolve issues. If issues are strictly legal, it might simply be you and your Collaborative lawyers. But separation and divorce often involve challenging financial, emotional, or child-related issues.
In addition to your lawyers, you may want the support of other Collaborative professionals:
- A neutral child specialist can provide insight into concerns of the children and help craft parenting plans.
- A neutral financial specialist can help gather and explain financial information and create future projections for settlement options.
- A Family professional can help you and your partner improve communication and manage conflict.
What is the difference between Collaborative Practice and a conventional separation or divorce process?
A conventional separation or divorce process is based on adversarial principles. Parties choose to use, or often threaten to use, the court system and judges to resolve their dispute. Couples working within an adversarial framework often come to view each other as adversaries, and separation and divorce as a battleground. The resulting conflicts can take an immense toll on emotions – especially your children’s.
Collaborative Practice is by definition a non-adversarial approach. Your lawyers pledge in writing not to go to court. They negotiate in good faith, and work together with you to achieve mutual settlement outside the courts. Collaborative Practice is designed to ease the emotional strains of a break-up and protect the well-being of children.
How does Collaborative Practice minimize hostility?
The guiding principle of Collaborative Practice is respect. A respectful tone encourages you to show compassion, understanding and co-operation. Collaborative professionals are trained in non-confrontational negotiation, which helps keep discussions productive. The goal of Collaborative Practice is to build a settlement on areas of agreement, not to perpetuate disagreement.
How does Collaborative Practice actually work, step by step?
When you choose a Collaborative approach, you each hire a Collaboratively-trained lawyer. You meet privately with your lawyers and discuss whether you could benefit from the expertise of Collaboratively-trained Family or Financial professionals. Or sometimes Collaborative Family or Financial professionals are the first ones you see and they refer you to Collaborative lawyers. Everyone agrees in writing not to go to court. Face to face meetings between you and your chosen Collaborative professionals are designed to produce an honest exchange of information and a clear understanding about needs and expectations, especially concerning the well-being of any children. Once you have this information you are supported to generate options and make mutually-acceptable choices about financial and parenting issues. The outcome reached using this team problem-solving approach is documented in your separation agreement.
Is Collaborative Practice a faster way to resolve separation and divorce issues?
Your situation determines how quickly your separation or divorce process proceeds. However, Collaborative Practice can be more direct and efficient. By focusing on problem-solving instead of blame and grievances – there’s an opportunity to strive for respectful results. Full disclosure and open communications help you cover all the issues in a timely manner. And since you settle out of court, there’s no wait for the multiple court dates necessary with conventional divorce. An agreement reached through mutual problem-solving (as opposed to adversarial negotiations or capitulation) is more durable and more likely to be complied with over the long run.
How does Collaborative Practice focus on the future?
Separation and divorce are both an ending and a beginning. Collaborative Practice helps you anticipate and include your need to move forward. It also makes your children’s future a top priority. Collaborative Practice helps you both establish a solid foundation and supports your goals for a smoother transition to the next stage of your lives.
Chances are, if you are reading this post, you, or a close friend or relative, is going through the divorce process. Overwhelming ranges of emotions and lack of clarity may be prevalent but add to this the need for the accumulation of all your financial documentation …all this can add to the stress of it all.
So what do you need to provide to your lawyer or mediator? Here’s the list:
- The last 3 years of tax returns. Not only that but your Notice of Assessment as well. Just because you disclose what you thought CRA wanted to know it doesn’t mean your return was assessed as filed. There may have been some discrepancies as to what CRA has and what you filed.
- Pay stubs for the most recent pay periods. If you get paid bi-weekly then a month’s worth of pay stubs will ensure that all your employer-based savings plans and other employment-related fees are all captured.
- Bank Statements. Some of the bank statement could be in your name, the name of you and your spouse or in a business name. All that needs to be disclosed as well.
- Brokerage Statements. Or any investment related statements including taxable accounts, Tax-Free Savings Accounts and any registered plans such as Registered Retirement Savings Accounts and Registered Educational Savings Plans.
- Credit Card Statements. This would include Visa, Mastercard as well as any lines of credit. Also, if you have lines of credit are they secured lines or unsecured?
- Statements from pension plans, profit sharing retirement plans, employee share purchase programs and any other employer-driven savings plans. If you were employed by the same employer before the marriage you might want to seek out what the value of these savings plans were before the nuptials as well.
- Real Estate valuations. I strongly recommend getting an appraiser to do this job. Not a real estate agent, an appraiser. This valuation would be for the principle residence as well as any recreational properties or investment properties.
- Mortgage Statements. Term. Amortization. Mortgage rate.
- Insurance. Both health insurance, even if it is covered by your employer, and life insurance, whether it be a group benefit through an employer or your own personally owned plan.
- Business Interests. If you own your own business all the details of your business must be disclosed such as tax filings (if they are filed separately from your own return) and audited business statements. Typically, business valuators have to come in to do an assessment as to the value of the business.
I would advise that you get all this together even before you go see a lawyer…to save time and, potentially, some legal fees. Keep in mind, too, that there are other experts out there that can help with the disclosure documents….such as a Financial Divorce Specialist.
Kathryn Jankowski is an accredited Financial Divorce Specialist (FDS), a Certified Financial Planner (CFP®) and a Family Mediator (OAFM) with over 30 years of experience in the financial services industry. Motivated by a passion to help others, she combines her financial expertise with her first-hand experience of divorce to offer clear, objective and personalized guidance during what is often a stressful and complicated process.
When divorcees are feeling secure about their future it’s easier to negotiate a settlement. The question is, however, what considerations are necessary to ensure the feeling of security is present? Here are a few ideas from my experience:
1) Think of the assets to be divided with both the present and the future in mind ~ Perhaps keeping the family home to help minimize change in the children’s lives is important. After all, they will go to the same school, have the same friends and the same community services they participate in will be the same. It could be their karate instructor or their favourite librarian at the local library. However, consider what you may have to give up to keep the family home to “buy” your spouse out of his or her share of the investment. If it’s your RRSP’s then will you still be able to pay for the costs of the home, on your own, and still save enough to retire in time?
2) Consider the costs of keeping the home. Budget planning is paramount to ensuring you are not eating into other assets to keep the house, such as other savings plans. This is a way to ensure the eventual sale of the home in the future but with no savings left as well.
3) Insurance ~ It’s not only a question of how much but also which is the right kind? For those obligated to pay child support consider a declining term insurance. At the beginning it might be advisable to have enough coverage to ensure your estate can continue to pay your obligation if the kids are young but let’s fast forward and you only have a few years of obligation left. Certainly, you don’t want your ex to be the beneficiary of a windfall if you only have a few months left to pay. I, typically, suggest declining term insurance for this purpose. The premiums are a lot less expensive and your obligations will be met.
4) Creativity in spousal support ~ I’ve seen some pretty ingenious settlements. I know one couple who both did not want to sell the family home so that their children could all finish the same high school that they started. They did agree to sell it in the future with a period of no longer than 5 years. Because one spouse would be living in the other’s equity (ie: their half of the house) it was agreed that the spousal amount, during that time period, would be less as the other spouse needed the additional cash flow for living expenses (and the cost of borrowing more due to their equity being tied up in the matrimonial home). Upon assessment, by me, we found that the home dweller was short, about $40,000 annually, in their budget to keep the house so the agreement was that the home dweller could work and make up to $40,000 (after tax) before the spousal support figure was affected. Both parties agreed. Remember, the law is the law, but it doesn’t stop you from making suggestions that make sense for your family.
5) Valuations of pensions ~ Depending on what type of pension is being considered you might want to get a valuation. If it is a money purchase, also known as a defined contribution plan, then the valuation on separation date is what the couple should consider. However, if it’s a defined benefit pension it’s best to have it evaluated. If you have the option to take the commuted value or the pension the decision could have a large affect on your retirement income. Even though the lofty commuted value may seem more alluring, often the monthly income, over time, may provide more of a benefit. It’s important to have an analysis done by a professional such as a Financial Divorce Specialist, to determine the correct choice for your future.
When couples feel more secure about their future it is easier to keep the process moving towards a settlement. For those that are not comfortable in their financial knowledge a trained professional can help couples avoid extremely costly financial decisions today that will affect their future family economics.
Kathryn Jankowski is an accredited Financial Divorce Specialist (FDS), a Certified Financial Planner (CFP®) and a Family Mediator (OAFM) with over 30 years of experience in the financial services industry. Motivated by a passion to help others, she combines her financial expertise with her first-hand experience of divorce to offer clear, objective and personalized guidance during what is often a stressful and complicated process.
“Combining mediation and arbitration, as well as elements of coaching and education, Parenting Coordinators serve as the primary resource for co-parents wishing to finally see an end to their co-parent conflict.”
For many co-parents receiving an order or developing a parenting plan may signal the beginning of a more peaceful and positive co-existence. With structure and a new understanding of co-parental expectations, parents can move forward and support their children. For other co-parents, this may not be the reality. Despite having an order or an agreement, issues and conflict may continue to occur. Even years after separation co-parents may still be plagued by poor communication and disagreement, and may not be able to fully disengage from their toxic relationship. The children of course are the ones in the middle, and their lives become a battleground. Buffering the children from this ongoing conflict and reducing the risk factors in their lives becomes the ultimate priority.
Whether one or both parents are contributing to the conflicted dynamic, Parenting Coordinators utilize specialized training to ensure orders and agreements are safely implemented and adhered to. Combining mediation and arbitration, as well as elements of coaching and education, Parenting Coordinators serve as the primary resource for co-parents wishing to finally see an end to their co-parent conflict. By serving as the functional link between dysfunctional co-parents, Parenting Coordination is the necessary intervention for high-conflict co-parents.
Jared Norton is a Parenting Coordinator with Riverdale Mediation. Jared seeks to help parents to develop co-parenting relationships and interactions which support the best interest of their children. Working with co-parent’s strengths, Jared helps co-parents address potential risk factors and to enhance protective factors within the context of the child’s world.
Ari’s sixth birthday party was perfect. Despite a late winter snowstorm, all his little friends made it to an indoor baseball stadium to play ball. There were baseball plates and balloons and a chocolate cake iced with green grass and miniature baseball characters running the bases. There were even ring pops – World Series rings – that turned all the kids’ smiles blue and red, my boys, Ari and his four-year-old brother, Josh, included.
Although it was a great day for my kids, I nearly had a panic attack before the party began. This was the first time since my divorce from their father, Shawn, that we held a party that included not just me and Shawn but also Shawn’s girlfriend and my boyfriend and his daughter. We made a strange extended family. It would be awkward, but we were determined to show that we were somehow, in some way, still a family. We wanted our kids to know that divorce didn’t have to be a dirty word.
That party couldn’t have happened had it not been for one significant process: mediation.
Although our divorce was nearing completion, we realized that if we wanted to parent as a unit over the long haul, we needed help learning to work together.
When we separated nearly three years ago, it felt like an apocalypse. We fought constantly. Days would go by when we didn’t speak; it was too painful to hear his voice. During stressful times and legal proceedings, our hatred for each other was palpable. For weeks, we avoided eye contact at pickups and dropoffs – we literally couldn’t stand the sight of one another.
Yet, our kids bound us together for life, even if our vows didn’t. We had intended to teach our children to ride their bikes in front of our home, but after we split, our goal changed. We had to learn to get along well enough to walk our boys down the aisle at their weddings.
Building a strong co-parenting relationship has taken – and still is taking – an incredible amount of work. It’s hard to compromise and listen when I resented watching Netflix alone, night after night, once I’d put the kids to bed. I didn’t want to agree to change the kids’ play dates at the last minute to accommodate Shawn’s work schedule, after I’d taken the boys skiing and struggled to put on their ski boots and skis and hats and gloves all by myself. Being physically unable to tie their skates tight enough, and crying as I watched their ankles wobble through their lesson, made me subconsciously reluctant to call Shawn when the kids earned a new karate belt.
Raising kids really is a job for two people – at least – and I was resentful that I had to suddenly juggle bills and house repairs and a job and kids and dating all at once. My life had been turned upside down.
But if there was one thing we could agree on when we were too angry to agree on anything, it was that we needed help. Several months ago, we met with Stella Kavoukian, a mediator and therapist who works with children and adults experiencing a variety of issues, including separation and divorce. Our hope was to have her help us resolve disputes and improve our communication.
We had a stack of issues to sort through. There were feelings of aggravation and mistrust after we legally ended our marriage. We had said a rash of unkind things to one another that we couldn’t take back. We struggled with the concept of having to raise kids together when it felt like we no longer even knew one another.
Seeing a mediator was an emotional process, but we weren’t capable of figuring out how to do this divorce thing right on our own. Before our first joint session, we each met with her separately to explain our concerns. At our first appointment together, Kavoukian laid down the ground rules, giving each of us a chance to speak and explain our perspective before the other could jump in. It was hard, at times, to keep us both in line, but no matter how many tissues we used, we were determined to see each session through to the end.
“Divorce is difficult and painful,” Kavoukian said in an interview. “Regardless of who initiated the separation, it’s a huge loss for each parent, as well as their children. Similar to when one loses a close friend or family member, there is much grieving involved. There is also usually quite a bit of apprehension, if not fear, regarding the future.”
It’s hard to cope – and to co-parent well – when you’re balancing these feelings with meeting your children’s needs. I used to sob in the car during the day and in my room until the sun rose. I didn’t want my kids to see my face stained with mascara. Yet the ability to parent amid this emotional chaos is, perhaps, when it matters most.
“Kids do as well as their parents do,” Kavoukian said. “We are their role models. The better that parents are able to communicate and resolve issues, the better their kids will be able to manage their own relationships throughout life.”
I’ve spent a lot of time since my separation figuring out how to be happy, but therapy, combined with mediation, marked a turning point. There is one concept in particular that has stuck with me from our sessions with Kavoukian – the need to start from scratch. She suggested that Shawn and I learn to let go of the past and build a new relationship with one another on a whole other level. Thinking about things in that way – respecting and trusting one another as co-parents, rather than distrusting each other as former spouses – is what finally enabled us to move forward.
Today, we function more like business partners than friends, but we have added a few nice touches. We take the kids to buy one another gifts for our birthdays, Mother’s Day and Father’s Day. We sort out holidays easily enough so that our kids can spend vacation time with each of us. We trick or treat together every Halloween; neither of us can bear the thought of missing out simply because it’s “not our day.” We send one another photos of the kids, so that neither of us is excluded even from the parts of their lives that we are technically missing.
And a few times a year, we sit side by side, or with a chair in between us, through their hockey games and school holiday concerts, waving to our boys.
All this constant communication and compromise, all this thoughtfulness, makes us more functional in divorce than we were in marriage. At the birthday party, while all the kids devoured pizza, Shawn stepped toward me.
“Did you see Ari’s home run today?” he asked.
“Yeah – Ari played so well. And did you see how fast Josh was running?”
We beamed at our boys with the kind of overwhelming love that only parents can feel.
At the end of the party, once the loot bags had been handed out and all the other kids had left, my kids clambered into Shawn’s car for their weekly Saturday night sleepover. I climbed into mine and went my separate way.
Stella Kavoukian’s tips for co-parenting
Stella Kavoukian, a mediator and therapist based in Toronto, tells parents that the alternative to compromise is often the legal system. “Going this route, apart from being emotionally and financially draining, forces parents to take opposing positions rather than work collaboratively,” she says. “Philosophically, this is a poor place to start when trying to work toward a child’s best interests.”
She offers this co-parenting advice for divorced parents:
- Know that successful co-parenting involves parents working together to create security, stability and consistency between the two homes.
- Help your children have meaningful and healthy relationships with each parent by supporting the other parent and their household. By being positive, you will promote more open communication between you, your child and your co-parent.
- Whenever you are unsure what to do, make your children and their needs your guiding light.
- Try not to blame the other parent. It is not helpful to anyone. It risks leaving your child feeling like they are caught in the middle and need to take sides.
- Don’t use your children as messengers by communicating through them; if you cannot communicate directly, use a professional.
- Don’t “parentify” your child, or make your child feel that he or she has to take care of you.
- Save your energy and resources to focus on those areas that are of most importance to you and your child. Avoid conflict over minor concerns.
- Remember that you cannot control the other parent, but you can control your own behaviour and your response to provocations.
For help with co-parenting issues, try an agency such as Families in Transition, Jewish Family and Child Service, or Catholic Family Services. Your family doctor or lawyer may also be able to provide you with names. The cost of a mediator may range from $225 to $375 an hour. Erin Silver
Watch video on Family Mediation as an alternative to court process with certified specialist in Family Law, John Schuman. The mainstream media has recognized John’s expertise and turns to him when it needs a top lawyer in the areas of family law and children’s rights.
Many separating or divorcing couples are choosing to go to family mediation, rather than family court to resolve the legal issues between them. They do this because family mediation is usually, faster, much less expensive, less emotionally draining and results in much more tailored resolutions that family court. Some people incorrectly believe that they can avoid seeing a lawyer by choosing mediation. Ontario Law says that is not the case. In addition, there are many good reasons to get help from a lawyer before, during and after mediation. This is not just a pitch by lawyers to keep business. To show why having getting help from a lawyer during mediation is helpful, even essential, we invited Accredited Family Mediator, Todd Slonim, to the podcast to explain.
Mr. Slonim, who is a professional and accredited family mediator conducts mediations both at the Toronto Family Court Mediation Service and privately, explains how parties who have assistance of lawyers find that the mediation goes more smoothly, has better and more creative resolution, and results in a more lasting agreement. When the parties get help from good family lawyers, they get better results more quickly and at lower cost. Mr. Slonim explains why that is the case and some of the problems that arise when parties do not have lawyers assist them with preparing for mediation and understanding the mediation process. From the perspective of a family mediator, Mr. Slonim describes how the involvement of family lawyers, early on, significantly helps the mediation process and leads to better results for the separating or divorcing couples. Especially in mediations over financial matters, one or both parties not having a lawyer can actually impede the mediation process. But, in every mediation, lawyers facilitate and expedite the process by ensuring the parties stay focussed on reasonable outcomes.
To assist with understanding the content of this podcast, Mr. Slonim, prepared slides that highlight the points he makes. Those slides show up on your screen on the iTunes version of the podcast. They are also shown to the right on this page.
Mediation is an excellent process. But it can lead to poor results when the parties do not know what they are doing. Listen to this edition of the podcast to hear why seeing a family lawyer is essential for getting the best possible results from the family mediation process.
John P. Schuman, C.S., LL.M., LL.B., B.A.H., AEMCA
John is a Certified Specialist in Family Law. He is a respected family lawyer, education lawyer and children’s rights lawyer in Toronto, Ontario, Canada.