“…but he was still hungry.”
The Very Hungry Caterpillar by Eric Carle (Philomel, 1986)
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.
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.
Brian Kilgore, Senior Counsel
The Legal A Team
Mobile (416) 879-5771
Jana Schilder, Co-Founder
The Legal A Team
Mobile (416) 831-9154
by FDRIO member, Kathryn d’Artois
When a relationship breaks down, clients have several choices about the process they use to discuss and settle the legal issues that flow from the separation, including parenting rights and responsibilities, child support, spousal support and the division of their property. They may decide to:
- negotiate on their own;
- consult with lawyers for advice;
- retain lawyers to negotiate on their behalf;
- participate in mediation either on their own or with their lawyers at the table;
- participate in a collaborative family law process;
- hire an arbitrator to hear their evidence and decide any issue(s) that they are
unable to resolve through negotiations;
- go to court; and / or
- engage the services of a parenting coordinator to work with them over an extended period of time to interpret and implement their parenting plan and resolve ongoing disputes about parenting issues.
Being screened for domestic violence, power imbalances and capacity to participate in process is an important component of mediation, arbitration and parenting coordination. Screening is crucial because it allows the professionals who facilitate discussions between separated parties in mediation or who make decisions about each party’s legal rights and obligations to ensure that clients who participate in private dispute resolution processes do so voluntarily and have the emotional and cognitive capacity to make informed decisions about how specific legal issues are resolved. Screening is also a mechanism that designed to ensure that clients are emotionally and physically safe before, during and after all dispute resolution processes. No formal screening is required for court proceedings to take place.
by Michael McKiernan, as appeared in The Lawyer’s Daily on Feb. 26th, 2018.
A new professional designation for parenting co-ordinators will help bring certainty to the growing field for both consumers and practitioners, says a senior member of the group that created it.
“It was in many ways a bit of a Wild West in Ontario before,” says Hilary Linton, vice president of the Family Dispute Resolution Institute of Ontario, which began offering its new certified specialist program in parenting co-ordination in 2017.
The technique is generally used to deal with disagreements between the parties after a final parenting agreement has been reached or a court order is already in place. Even after settling some of the big-picture issues in litigation, Linton explains, disputes over smaller details such as school choices, vacation plans, after-school activities and many others can drag on for years.
Parenting co-ordinators trace their roots to certain states south of the border in the early 1990s, according to Linton, who adds that Ontario lawyers and judges began embracing the concept more than a decade ago.
Although FDRIO’s voluntary program is not a prerequisite for the acceptance of retainers in Ontario, Linton says it boosts the options for parenting co-ordinators in the province who want extra training.
“There was a lot of existing material out there, but nothing was specific to Ontario. This sets a pretty solid standard and has a community of supportive professionals behind it,” she explains.
“This is very challenging work, and it didn’t seem right to me that professionals out there doing some of the most difficult jobs in family law had the least amount of guidance to support them.”
Linton says the need for specific guidance was enhanced because the evolution of parenting co-ordination in Ontario has followed an idiosyncratic route compared with other jurisdictions.
While many U.S. states reference the process specifically in their family law legislation, Ontario law makes no mention of it.
Instead, private contracts between parents and parenting co-ordinators dictate the terms of the process.
Parenting co-ordinators in Ontario will generally try to mediate a settlement over the issues before making a binding decision via arbitration if one is required, which is in turn recognized as a form of secondary arbitration under the Family Law Act.
“The other thing we noticed was a growing amount of case law evidencing the need for education,” Linton says.
In some cases, she says, disputed decisions indicated the parenting co-ordinator had an inadequate grasp of the arbitration process, while others suggested the parents lacked understanding of the agreements they were getting into.
In the recent case of Jerova v. Benincasa, the father of a four-year-old child appealed a parenting co-ordinator’s decision to side with the mother on the issue of which elementary school their young boy should attend.
The appellant argued, among other things, that the parenting co-ordinator was biased against him and ignored evidence.
“I get the clear impression that the appellant and his counsel, during the arbitration portion of the PC process, insisted on a very strict adherence to the rules of procedure and evidence that one would expect in a court proceeding.
Unfortunately for the appellant, that is not the dispute resolution process that he agreed to engage in,” Ontario Superior Court Justice Julie Audet wrote in her decision dismissing the appeal.
“The role of this Court, in the context of this appeal, was to ensure that he was treated equally and fairly, and that he had an opportunity to present his case and to respond to the respondent’s case within the procedural framework clearly set out in the PC Agreement. I find that he did,” she wrote.
Elizabeth Hyde, a former chairwoman of the Ontario Bar Association’s ADR section and an instructor of the FDRIO program, says the legal intricacies of Ontario’s particular brand of parenting co-ordination may have contributed to the growth in demand for practitioners who are also qualified as a lawyer. Historically, she says, parenting co-ordination was conducted predominantly by social workers.
“We tend to spend a bit less time on the mediation and consensus-building phase. The last people who came to me told me they wanted a lawyer who could interpret the law and make a quick decision so that they could move on with their lives,” Hyde says.
“That’s easier for lawyers because of the greater level of comfort we have with the arbitration process.”
Linton says the individual needs of the parents in dispute will inform their choice between a parenting co-ordinator with a legal or social work background.
“Every case is different, and some people respond better to a therapeutic approach,” she says.
“When you have greater clinical issues at play, it’s going to be more valuable to have a person with experience in that area.
“The most important thing is that everyone understands what they’re getting into right from the very start,” Linton adds.
Marianne Cuhaci, a non-lawyer parenting co-ordinator with more than a decade of experience and a master’s degree in social work, warns her colleagues not to underestimate the legal knowledge required for the job.
“I don’t think one background is better than the other, but you can’t go in thinking ‘I have a lot of mental health experience, therefore, I can do it,’” she says.
“Ideally, you’ll have a multi-disciplinary approach, and there are situations where lawyers and mental health professionals work together.”
The FDRIO course devotes 30 hours of its content to training on family law issues, although lawyers seeking the designation are exempted from that portion of the program. No matter which route they take to the profession, Hyde says, parenting co-ordinators need to have built up a foundation of experience dealing with high-conflict family cases.
“I tell people they need at least five years before even thinking about parenting co-ordination. That takes people by surprise, because they think it looks easier than mediation,” she says.
“But this is not regular mediation.”
Although many of the disputes that come before parenting co-ordinators appear minor to outside observers, Hyde says the stakes frequently could not feel higher to the parties involved, who have often been fighting consistently for years.
“These are literally the most challenging situations in terms of the level of conflict,” she says.
According to Cuhaci, the emotional nature of the subject matter exposes parenting co-ordinators to an elevated level of professional and personal risk from angry parties on the wrong end of a ruling.
“The number of complaints to law societies and other regulatory bodies is becoming a big problem because of the way it interferes with our ability to work,” says Cuhaci.
She would like Ontario follow the lead of some U.S. jurisdictions, where legislation grants parenting co-ordinators some measure of immunity from actions relating to their decisions.
“We’re making decisions in a quasi-judicial role, but we don’t have any protection,” she adds.
Linton says she’s also campaigning for further recognition of the role of parenting co-ordinators in Ontario law.
“There’s a lot more that could be done in Ontario at the legislative level to support parenting co-ordinators and improve the standard for family arbitration as well,” she says, adding that Prince Edward Island and British Columbia are setting an example to other Canadian jurisdictions.
“Both have not only established standards but also oversight of some kind from government or regulatory bodies on those standards.”
Jonathan Richardson, a partner at Augustine Bater Binks LLP in Ottawa, says parenting co-ordination can be “a godsend in a high-conflict file.”
“One of the primary problems is the lack of available parenting co-ordinators or the delay when they are needed,” he says.
“An increase in specialized parenting co-ordinators can only be a good thing and will hopefully help remove some of the high-conflict family cases which remain in the court system.”
Richardson encourages family lawyers to contemplate using parenting co-ordination at an early stage in a case.
“Most files [that] will be high conflict with respect to custody and access issues will be apparent early in the proceeding,” he says.
“It would be preferable to get those cases into a system where the parties can get the assistance and adjudication they need quickly before their resources are exhausted and co-ordination is a last alternative or no longer an alternative as funds which could have been spent on co-ordination have instead been spent on lawyers in court.”
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
by, Abi Ajibolade RP
Executive Director, The Redwood…For Women and Children Fleeing Abuse
The Redwood provides programs and services to support women and children to live and thrive without abuse, homelessness and poverty. We work for social change through learning, collaboration and advocacy, and envision a socially just world where systems of oppression are eliminated and women and children are free from all forms of violence.
As advocates working with women to end GBV, we hold deeply our values of putting women and children at the centre of all that we are and do. We must continually examine power as it impacts decision-making within the organization and ensure that we embody our opposition to oppression and marginalization that women may encounter in a complex and often punitive system. We are first and foremost dedicated to our commitment to women-centered and trauma informed practice which will work toward reducing harm and supporting healing and self-determination.
One tool that we use to ensure that we work in partnership with the woman while optimizing her safety, is our SARM (Safety Assessment and Risk Management) planning tool. We are constantly introducing new ways that we can implement our SARM procedures to enable empowerment of the client while addressing her particular safety needs and hurdles while interacting with the greater system.
According to Statistic Canada, only 38% of women experiencing abuse connect with social services, such as crisis lines, shelter, community centres, counsellors, women’s centres and support groups. Less than one-third of women report their experiences of intimate partner violence to the police. Based on the latest statistics from the MCSS, last year approximately 51,700 crisis calls were received on crisis lines for women, in Ontario alone.
In reflection of the presenting concerns that lead many women to limit their interaction with the criminal justice and child protective services, we have recently been in a stage of re-assessing our SARM and focus on advocacy to incorporate alternative approaches to women’s involvement with these systems. A major factor that has propelled us to change our strategy is hearing women’s wariness over the years, to disclose their abuse experiences to shelters, the legal system, law enforcement or other institutions and organizations. And these statistics reflect this. There is an underlying sentiment of having little confidence and trust in the system, particularly from racialized and indigenous women. Women hesitate to involve the police and are reluctant to go through the traditional court process because it would reinforce negative stereotypes, and only add to existing high incarceration rates. Distrust in the legal process is also contributed to by a history of unjust apprehension of children by child protective services. These fears are very often the reasons why some women feel like they have no other choice but to remain in an abusive relationship.
One of the discussions we have had over the recent years has been the favoring of alternative routes to the court system such as mediation. There are a multitude of reasons why a survivor of GBV may choose to access such an alternative in cases of abuse and child protection including the great stress placed on both parties that may exacerbate the abuser’s risk for re-victimization of the woman.
However, there appears to be a consensus within the Violence Against Women sector that mediation is not suited for domestic violence situations. The reasons which make mediation contentious are important issues. However, we need to also consider the larger context by asking ourselves, “do traditional court procedures provide any greater protection?” The answer is no.
Mediation may actually be better, or no worse than the alternatives. When we take a look at the main critiques of mediation in terms of where it falls short in protecting the interest of the vulnerable, it becomes apparent that many of these reasons also stand true for the courts system; firstly, the lack of understanding regarding the dynamics of intimate partner violence and secondly, the power imbalances between the parties allowing the abuser to continue to go on to intimidate and manipulate. In fact, it can be argued that professionals that choose to mediate cases involving domestic violence have extensive education in the dynamics and intricacies present when working with survivors of GBV and their abusers, which is not expected of professionals in the court system. Furthermore, there is less likelihood that the abuser can exercise power imbalance apparent in many cases including where the abuser can employ high-level attorneys that are inaccessible to the woman and are used to intimidate the survivor or orchestrate a scene where she is discredited as unstable, unfit or deceitful. This can be wholly avoided when the route of mediation is available to the woman.
At the heart of the matter is the importance of practicing from a trauma informed client-centred approach; one, which acknowledges a woman’s life experiences, and respects and supports their right to choose the direction of their own lives. Automatically excluding victims of violence from mediation falsely assumes that all victims are not capable of promoting their interests and those of their children. Such an assumption can be disempowering in and of itself. Ultimately, this stands at the centre of the issue, so we need to ask ourselves, “who should be making such decisions when we rule out mediation?”