Law Times

Page 12 February 22, 2016 • Law Times www.lawtimesnews.com FOCUS CALLING ALL CHARITABLE ORGANIZATIONS! To advertise in our next charitable organizations issue, contact us at 416-649-8841 or CarswellMedia.Sales@thomsonreuters.com Untitled-3 1 2014-10-15 9:16 AM CHARITABLE ORGANIZATIONS Mediation leads to creative solutions in family law YAMRI TADDESE Law Times M ediators and law- yers who act in me- diation pride them- selves in coming up with creative solutions for family law disputes outside of court, but sometimes those solutions put lawyers in "an awkward posi- tion," a mediator says. Cathryn Paul, who is an ex- perienced mediator and arbitra- tor, says family mediation runs smoother and the results are bet- ter when lawyers are involved. But it's not always easy for lawyers to get accustomed to the kind of compromise the process requires. That's because in mediation, the ultimate resolution to a dis- pute may be drastically different from the kind of order the parties could get in court, Paul says. Take, for example, how parties decide to deal with a home that was owned by one of them before their marriage. If that home became the mat- rimonial home, the value of the property would normally be split between the two of them upon divorce even if only one of them still owned it. "If you owned a matrimo- nial home, that value doesn't stay yours. It's one really weird excep- tion in family law and that leads to unusual circumstances," says Paul. "[If ] the husband . . . owned a home worth $500,000 on the date of marriage, he doesn't get that money back on the date of sepa- ration," she adds. "Now every- body knows if they went to court . . . he'd lose that money, basically." But the outcome could be dif- ferent in mediation. "The wife might say, 'Hey, you know what? I know that you put all your life savings into that home and it's only fair you get some of that money back,'" Paul says. "So when the parties agree to something like that, it puts the lawyers in an awkward situation. The lawyer for the wife would have advised her, 'Look, if you went to court, you'd get more money,' and the wife might say, 'I understand that, but that's not what's right for me.'" Another one of these "awkward" circumstances for lawyers happens when parties agree to a spousal support payment system that's different from the kind a court would order. Typically, spousal support payments are made on a monthly basis, but for- mer spouses in mediation may agree to a lump sum amount. The lawyer for the payer in such cases may feel uncomfortable with the ar- rangement, Paul says. "They're worried that the payer is paying too much and maybe down the road the other party won't need the support," she adds. For lawyers, there's a real risk in signing off on a deal that ap- pears as if their client is getting the short end of the stick even if the client has agreed to it. They're legitimately concerned their client might come back and sue them for inadequate representation. It's true that clients might be "touchy feely" during mediation, but they may later regret their choice, says Bill Rogers, a fam- ily lawyer who is now in training to become a mediator. "It can be awkward; it's a weird situation sometimes," he says. Rogers says the way he'd typi- cally deal with these issues is by ensuring a client is making ma- jor gains somewhere else in the agreement. "Typically in mediation, if you get something good, you have to buy it," he says. "Not with money, but it's kind of like a trade." Adds Rogers: "The beauty of [mediation] is that you can craft your own solutions and it's way quicker and way cheaper." Paul says some lawyers deal with these uncomfortable sce- narios by having the client sign a waiver. The waiver would say the cli- ent has been advised otherwise and he or she wouldn't sue his or her lawyer later if he or she changed his or her mind. Rogers says if he feels uncom- fortable enough with a deal to be- lieve he needs a waiver, he'd with- draw from the matter altogether. "If you're paranoid, I'd not touch it," he says. "It's not worth it." Even when a waiver has been signed, a client who later regrets his or her decision will find a way to sue, Rogers says. "They'll end up saying they didn't understand it properly," he adds. "They'll blame you for it and they'll say, 'Yes, you told me I was making a mistake, but you didn't make it clear enough, you didn't explain it enough.'" Paul says she'd hate to see law- yers withdraw from the process because lawyers who understand the process are extremely helpful. "We really have to, as media- tors, work with the lawyers to have a different mindset because, when they go to litigation, they're zeal- ously advocating for the rights of their clients, but when they come to mediation, they're part of a solu- tion-building team," she says. "So they may be coming up with ideas or looking at solu- tions that may not necessarily be 100 per cent in their client's fa- vour because they're looking for something that will make the ar- gument end. They're really valu- able parts of the team, but not all lawyers can do that successfully," Paul continues, adding it's im- portant for lawyers to add this to their skill sets. LT Cathryn Paul says a resolution reached in mediation may be different from a result in court. Thanks to your generosity, The Toronto Star Children's Charities can bring a breath of fresh air and Christmas gifts to 80,000 Toronto area youngsters each year. The Toronto Star Fresh Air Fund helps send 25,000 disabled and disadvantaged kids to summer camp. The Toronto Star Santa Claus Fund delivers gifts and food to 55,000 underprivileged children. To donate by cheque, clip this ad and mail to: The Toronto Star Fresh Air Fund OR The Toronto Star Santa Claus Fund One Yonge St., Toronto, ON M5E 1E6 Donate by calling (416) 8694847 OR online by credit card to: thestar.com/freshairfund OR thestar.com/santaclausfund Bring a big smile to 80,000 little faces The beauty of [mediation] is that you can craft your own solutions and it's way quicker and way cheaper. Bill Rogers

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