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Lawyers favour mediation over litigation: report

Focus on Alternative Dispute Resolution
|Written By Meagan Gillmore
Lawyers favour mediation over litigation: report
Christine Vanderschoot says the availability of mediators at courthouses helps make it more accessible.

Ontario 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 Forum on Civil Justice survey of family lawyers in Ontario, they  overwhelmingly favoured using mediation to settle disputes, as compared to litigation, collaboration and arbitration. The survey — 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 Columbia, 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 methods. More than 89 per cent of respondents in the survey from Ontario said they used mediation to resolve disputes related to such things as custody and division of property and assets, the most of any province surveyed. The other 11 per cent did not report using mediation.

Christine Vanderschoot, senior associate at Kelly D. Jordan Family Law Firm in Toronto, says the availability of mediators 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 somehow akin to couples’ counselling or therapy,” she says. “Mediation is another tool in the family’s toolbox to help people that have decided to separate with as little instability for the children 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 satisfied with the results of mediation than they are from the results of litigation, says the Canadian Research 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 accusations 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 mediation, says Gossin, who does both. 

“I can knock [commercial mediations] off in a half a day, day, two days,” but family mediations 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 surveyed for the Canadian Research Institute for the Law and the Family report, on average, low-conflict cases take 4.8 months to resolve through mediation, while high-conflict cases take 13.7 months. In litigation, the report says, low-conflict disputes resolve in 10.8 months, while high-conflict disputes take 22.7 months. The report also says mediation typically costs half as much as litigation.

Despite the benefits, not every couple should pursue mediation.

“People have to be willing to buy into the process, commit to the process and make the decisions and the compromises necessary to prevent the matter from going to court,” says Gossin.

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 ameliorate [it],” says Gossin.

Mediators need to be particularly 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, mediation 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-conflict situations, including those involving 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 solutions for areas such as child support better than a court would typically allow. “The court process doesn’t really allow people to be creative.”

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