Law Times

Page 10 November 4, 2013 Law Times • FOCUS Time to regulate family law mediators? BY JUDY VAN RHIJN For Law Times W ith mediation touted as the dispute resolution method of choice for family law, some lawyers feel the mediation industry is burgeoning with little formal control over the quality or credentials of those who are offering their services. While a consensus is forming that the time to regulate the industry has come, the method of regulation is the subject of much debate. Gary Joseph of MacDonald & Partners LLP in Toronto wonders whether unregulated family law mediators are serving the public well. "We as lawyers are surrounded now by an army of family law professionals advising, drawing agreements, and mediating. Some are qualified in the broad sense to bring people together to find a solution but they are doing much more than that. Half of the ones we hear about are providing legal advice." Andrew Feldstein of the Feldstein Family Law Group Professional Corp. in Markham, Ont., finds the situation frightening. "Clients tell me they've found a mediator who will do everything — negotiate everything and draft the affairs of society and the agreement. The allure the individuals in it. "Evis that it's very inexpensive ery profession needs regand cost-effective. For ulation — self-regulation that day, it does feel good or peer regulation — or because they've come to the government steps a resolution, but one day in with legislation. Not in the future they find every discipline reaches it's very unfair. One will that level, but family mespend a small fortune trydiation is now at a level ing to undo it and most of acceptance where it likely will succeed." needs to be regulated." Feldstein remembers There are several one case where the husorganizations that ofband was paying half the fer certification, but it's guideline amount for no completely voluntary. legal reason. "The media"The organizations don't tor had said, 'That sounds have much of a whip," like a lot of money.' There says Joseph. is a lot of pressure on All mediators who people in mediation. Af- 'Lawyers may not have much knowledge of ter the conclusion, they parenting issues and social workers and psy- provide services in Ontachologists may not have an understanding of need to truly get inde- spousal support or property obligations,' says rio's family courts must have accreditation or cerpendent legal advice and Sarah Boulby. tification by the Ontario not just from two lawyers who are mediation friendly and build their Association for Family Mediation, Family Mediation Canada or the ADR Institute of practice signing off on agreements." Ottawa lawyer and mediator Ernest Tan- Canada Inc. or have equivalent qualifications nis has looked at the bigger picture of the such as a law or master-level degree, relevant evolution of disciplines that intervene with work experience, and specialized training. Federation of Law Societies of Canada 2014 Family Law Program Federation of Law Societies of Canada National Family Law Program Fairmont Whistler British Columbia July 14-17 2014 Mark Your Calendar! Please visit www.sc.ca http://www.sc.ca/en/national-family-law-program/ for information updates Special rates have been negotiated at the Fairmont Whistler from 199.00 single or double. Bedroom room block rate includes July 12 to 18, 2014. The conference rate is also available three days prior and three days after the group dates at the contracted group rates based on availability. Reservations link: https://resweb.passkey.com/go/nc2014 or call the Fairmont Whistler Inhouse Reservations Department at 1-800-606-8244 to make reservations. Callers should identify themselves as being with the National Family Law Conference or group code "0714FLSC" in order to receive the group rates. FederationofLaw_LT_Nov4_13.indd 1 www.lawtimesnews.com 13-10-30 11:28 AM But for mediation occurring outside of the courts, there are no similar requirements. Many other jurisdictions have models for regulated mediation professions. In the Florida model, people must already be established members of a self-regulated profession in order to practise and then get the training and experience required. Sarah Boulby, a partner at Basman Smith LLP, favours this approach. "Many mediators are members of professions that are already regulated by colleges, including psychologists, social workers, and lawyers. The question is why it's an area that people can do without any substantive knowledge. There is no supervision and nowhere to go if a member of the public has a complaint." Boulby notes that even in the crossover between lawyers and health professionals, there may be gaps in the knowledge base. "Lawyers may not have much knowledge of parenting issues and social workers and psychologists may not have an understanding of spousal support or property obligations. That's already a concern, and then there is the possibility of people with no substantive knowledge at all hanging out a shingle. I worry about that practice because I don't think the general public understands what skills and knowledge mediators need and the responsibilities they have." Joseph believes regulation is the role of the Law Society of Upper Canada. "Family law involves law. They are complex matters and sometimes the cases that seem the simplest turn out to be the most complex." He gives the example of the calculation of spousal support. "People are given the spousal support advisory guidelines and create a number, but there are multiple notes to [them]. It is a lawyer's duty to know the notes. I would guarantee the vast majority of mediators don't even know there are notes." Tannis ardently opposes the idea of the law society spreading its wings in this way. He believes the regulator should reflect the multidisciplinary nature of the industry and favours self-regulation. "It would be a huge mistake if the law society or any other existing self-regulating body takes control of that. What we'll lose is common sense and the intelligence of the other disciplines." Tannis encourages the various alternative dispute resolution groups in Ontario to take on the challenge of regulation before someone else does. "I remember warning the franchise industry in the 1980s that if they didn't get their act together to self-regulate, the government would step in. Now legislation controls them." LT

• Cover