Law Times

Law Times • November 8, 2010 An online resource 1.800.263.3269 Focus On FAMILY LAW Chief justice expands on proposals to redesign family law system Winkler undaunted by mandatory ADR critics O BY JUDY VAN RHIJN For Law Times ntario Chief Justice Warren Winkler has put a cat among the pigeons with a public call for mandatory mediation to be part of the family law process. But the widely divergent views held by experienced prac- titioners mean the proposal is in for some rigorous debate before anyone is brave enough to see it fl y. "I did it to generate discus- sion and to get people thinking outside the box," says Winkler. "I have no pride of owner- ship in this. Th e No. 1 area where access to justice is criti- cal and where there is a denial of access is family law. Cur- rently, there are so many steps that it becomes protracted and the parties end up as self-repre- sented litigants at trial. When people have problems that are destroying their lives, we have to fi nd a way to fi x it." Th e grounds for opposing the proposal are many, but one that inevitably gets mentioned is that it's impossible to force people to mediate successfully. As a result, the process won't work if the participants are unwilling. Esther Lenkinski of Lenkinski Family Law & Mediation Professional Corp. is one lawyer who voices that concern. "To be successful at mediation, the parties must be motivated to succeed," she says. "Until they are educated about the eff ects of divorce, manda- tory mediation at an early stage is not useful." She's not the only lawyer to feel that way. Th e results of the Law Commission of Ontario's consultations for its Best Prac- tices at Family Justice System Entry Points project released in September noted there was "a lot of skepticism about man- datory mediation, mediation being a process that can only work if both sides are commit- ted to solving their issues on their own with the guidance of the mediator and trust the process." Winkler is undaunted by this particular concern. "I have a lengthy background in me- diation," he says. "I couldn't tell you how many cases I've settled where one party didn't want to be there, so I am not discouraged by that. It is still a voluntary process once you are there. You can refuse to agree and go home." Winkler notes he has already been down this path before. "When we introduced manda- tory mediation as part of the civil justice reform, it reduced the waiting time to trial by two-thirds. I'm confi dent it will reduce the inventory of family law cases and free up judges for trials and I'm sure it will be in the best interests of the parties by making the system better, cheaper, and quicker." Th e second major concern is that it will replace the case- conferencing system imposed on all family law cases in On- tario by the Family Law Rules in 2004. Many participants in the justice system believe the system provides an opportu- nity for early settlement and ensures that cases proceed with a certain speed. In Lenkinski's view, case conferences are ef- fectively mediation by an expe- rienced family law judge at no cost to the public. "I don't want to be critical of case conferencing," says Win- kler. "But people say that there are too many of them and they are too expensive because there tends to be more than one." Indeed, Winkler's proposal would redesign the entire sys- tem, although he's still focusing on the idea of court-based me- diation that's free to the public rather than a process similar to the civil system in which par- ties pay for a private media- tor and present the court with a certifi cate showing they've gone through it. "I wouldn't see it as dupli- cating the case conferencing or adding another step to the pro- cess," Winkler says. "I am not saying that we should take the present system and insert me- diation. I propose redesigning it from the bottom up. After an educational session, after the parties have received full disclosure, after they have got representation, then have me- diation upfront. I would put the judges who now do case conferencing into the media- tion or it could be done by pro bono lawyers, masters or social workers. Th ere is no magic as to who would do it. We would use the available resources." But Lenkinski thinks it would be a step backwards to take away case conferenc- ing. "It would slow down ev- erything," she says. "Judges would no longer be running case conferences, which I be- lieve are tremendously useful. Th e judges are very responsible about reading the material, ADR. I wonder if clients, being emotionally upset in a lawyer's offi ce, are necessarily absorbing all the information they should be absorbing. A public session that makes that clear might be better. At present, when people fi le for divorce, they are invited to see a movie that is geared to the least sophisticated and has little impact." Lenkinski also proposes that 'I have a lengthy background in mediation,' says Warren Winkler. assisting the parties, and off er- ing ongoing conferences to as- sist. Th ere are some diffi culties because they have too many cases on their dockets, but in my experience, judges go out of their way to work through lunch and stay late and to give other dates to assist. Th e judges are doing a really good job in the publicly funded system." Lenkinski's proposal is for a mandatory education system that covers alternative dispute- resolution methods in detail. "Right now, lawyers are re- quired to sign a certifi cate to say they have advised clients about TOOLS 2K 10 "NEW" Redesigned, Restructured, Reorganized…REMARKABLE! For Child and spousal support calculations, cash fl ows and more... Features Include: Redesigned Printout: A concise, easy-to-understand one page printout. New "Search" feature: Find particular input items quickly and easily. New input: Easier to understand and better organized. What you see is what you print. More fl exibility: Handle complicated scenarios with the use of overrides. Improved "Help" menu: Minimize input errors and uncertainty. Simplifi ed Emailing: Convert calculations to PDF with one click - ready to email. COMING SOON: B.C. Supreme Court Forms DIVORCEmate One...From Marriage Contracts to Divorce Judgments and Everything in Between. a product of Untitled-1 1 www.lawtimesnews.com Toll Free: 1-800-653-0925 or 416-718-3461 x446 e: sales@divorcemate.com www.divorcemate.com 6/15/10 11:50:59 AM parties have expanded access to social workers, psychologists, lawyers, chartered business valuators, and accountants. "In health care, when there is a signifi cant diagnosis, a pa- tient gets a multidisciplinary lecture from all the individu- als involved in his or her care. Family law clients should have immediate access to a panel of professionals who can tell them what happens and assist them to try and resolve without sig- nifi cant litigation." With people receiving bet- ter education and advice, then, Lenkinski expects more liti- gants would choose mediation voluntarily. As a result, man- datory mediation wouldn't be necessary. LT PAGE 9

• Cover
• Revising Retainers
• Victim Impacts
• Focus On Family Law