Law Times

Law Times • sepTember 3, 2018 Page 9 www.lawtimesnews.com Way of the future? Lawyers favour mediation over litigation: report BY MEAGAN GILLMORE For Law Times O ntario family lawyers continue to favour settling disputes through mediation, saying it produces better results for separating couples and their children, as well as saving time and money. According to a Canadian Fo- rum on Civil Justice survey of family lawyers in Ontario, they overwhelmingly favoured using mediation to settle disputes, as compared to litigation, collabo- ration and arbitration. The sur- vey — which was carried out by the Canadian Research Institute for the Law and the Family — was based on the opinions of 160 family lawyers in British Colum- bia, Alberta, Ontario and Nova Scotia on their use of litigation, mediation, collaboration and arbitration in their family law practice. Most lawyers reported using more than one method in their practice. Lawyers from Ontario were more likely to use mediation as one of those meth- ods. More than 89 per cent of respondents in the survey from Ontario said they used media- tion to resolve disputes related to such things as custody and divi- sion of property and assets, the most of any province surveyed. The other 11 per cent did not re- port using mediation. Christine Vanderschoot, se- nior associate at Kelly D. Jordan Family Law Firm in Toronto, says the availability of media- tors at courthouses helps make it more accessible. However, she says, couples need to understand mediation is not designed to prevent a divorce. "People feel that if they go to a mediation when their family's breaking down that it's some- how akin to couples' counselling or therapy," she says. "Media- tion is another tool in the fam- ily's toolbox to help people that have decided to separate with as little instability for the chil- dren and as little expense and as little friction as they're dividing their family. It is a very difficult thing to go through. People have compared divorces to the loss of a career or even a death in the family." Couples are often more satis- fied with the results of mediation than they are from the results of litigation, says the Canadian Re- search Institute for the Law and the Family report. The preference for mediation is partly because couples control the process in mediation, says Eric Gossin, managing partner at Stancer Gossin Rose LLP in Toronto. "[In a court action], the ac- cusations are in black and white for everybody to read. They're staring you in the face," he says. "So, all of that acrimony is there on the surface. Whereas if you can get people in a room and they're mediating, you can keep the tone down so that people can negotiate a resolution. They control the process, and that's hugely beneficial." A family mediation can take longer than a commercial me- diation, says Gossin, who does both. "I can knock [commercial mediations] off in a half a day, day, two days," but family me- diations require three or four meetings, he says. Still, family disputes typically are resolved faster in mediation than they are through litigation, says Vanderschoot. According to the lawyers sur- veyed for the Canadian Research Institute for the Law and the Fam- ily report, on average, low-conf lict cases take 4.8 months to resolve through mediation, while high- conf lict cases take 13.7 months. In litigation, the report says, low- conf lict disputes resolve in 10.8 months, while high-conf lict dis- putes take 22.7 months. The re- port also says mediation typically costs half as much as litigation. Despite the benefits, not ev- ery couple should pursue me- diation. "People have to be willing to buy into the process, commit to the process and make the de- cisions and the compromises necessary to prevent the matter from going to court," says Gos- sin. Some relationships are so badly damaged that mediation can't work, he says. "The level of distrust between a couple is so high that they don't believe a mediator can amelio- rate [it]," says Gossin. Mediators need to be partic- ularly careful in situations where there's been abuse, because they need to evaluate if a party is making decisions out of fear, says Vanderschoot. "Where there's an unlevel playing field or one party has fear of the other party, media- tion may not be the best route to take, because the person who's fearful may not be able to make decisions for themselves in the mediation," she says. Elizabeth Hyde, a mediation trainer and lawyer at Riverdale Mediation Ltd. in Toronto, says that, in her view, "mediation is going to be the way of the future." Hyde trains mediators on how to respond to high-conf lict situations, including those in- volving domestic violence. She used to litigate family disputes, but she now exclusively mediates. "I do feel that I can work with people to get a good result [through mediation]," she says, noting that mediation can allow couples to come up with solu- tions for areas such as child sup- port better than a court would typically allow. "The court pro- cess doesn't really allow people to be creative." LT FOCUS Christine Vanderschoot says the availability of mediators at courthouses helps make it more accessible. Your injured client needs more than a settlement. Small structures can do big things. STRUCTURE IT EVERY TIME. 1.800.265.8381 | www.mckellar.com Untitled-1 1 2018-06-04 3:39 PM

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