by Dr. Denise Whitehead and Dr. Rachel Birnbaum
Dr. Denise Whitehead
Practising mediators can easily outline the positive outcomes that families gain when engaging in a settlement process designed to achieve negotiated agreements on parenting and legal issues. They understand that mediation also allows opportunities for individuals to gain new perspectives and conflict resolution strategies that will serve them well in managing their interpersonal interactions beyond the settlement. Yet, the ongoing challenge for mediators is to find a way to get families through their door and to seriously consider the mediation avenue.
Dr. Rachel Birnbaum
The Netflix production A Marriage Story highlights that, even when parents start with the intention to manage the separation civilly and without lawyers, things can quickly shift when you are asking people to trust a process when they are hurt, angry, fearful, and protective of their rights and their children. It represents a seismic shift to ask people to try something they do not fully understand, and with which they have little familiarity. Television and movies do not offer much insight about the mediation process and why, for the right types of issues and families, mediation services can offer a quicker, cheaper, and, often, resolution of issues that is longer-lasting than litigation.
This conundrum has been an issue in Ontario, where publicly funded court-annexed mediation services have been available at all courthouses since 2011. This Ontario-wide initiative coincides with the general trend in many family court jurisdictions worldwide to make mediation services accessible and affordable. In Ontario, despite the relatively liberal access to these services, drawing individuals through the mediation door has been a challenge, with some locations facing greater obstacles than others. At the behest of the Ontario Chapter of the Association of Family and Conciliation Courts (AFCC-O), a call for proposals was made for research on which aspects of Ontario’s publicly funded family mediation services generate greater usage, or act as impediments to client uptake. The full report is available online at: https://afccontario.ca/wp-content/uploads/2019/04/Whitehead-Birnbaum-Family-Mediation-Report-Final-2019.pdf
Drawing on data gathered in 2018, through an online survey and key informant interviews with both mediation practitioners and referrers to mediation, and interviews with family judges, here are the main takeaways and lessons learned for mediation practitioners.
Getting the Word Out: What is Mediation? How Can it Help?
Lack of awareness and confusion about mediation services
Mediators expressed considerable frustration regarding the general lack of public understanding about mediation generally, and the availability of publicly funded mediation services. As one mediator noted, only in more recent times have people stopped confusing mediation with “meditation.” That said, misperceptions still persist about the role of mediation. Some parties resist mediation because they think the goal is to try to get the couple back together, confusing it with some type of reconciliation or couples counselling. For people who have found their way to the courthouse to dissolve their relationship, this misunderstanding can be off-putting, as this is not the outcome they are seeking. Others think mediation allows them to negotiate outside the law, rather than understand that compromises still need to fit within reasonable parameters of the law. And, still others think that mediation involves a judge-like solution or decision that will be imposed upon them, as opposed to “owning” the task to come up with their own negotiated solution.
In Ontario, the current practice is largely to educate individuals, one at a time, mostly as they cross the threshold of courthouses in Ontario, where they may seek assistance through the Family Law Information Centres (FLICs). There is logic in the current model. The offering of services that are strongly tied to the courthouse provides an obvious point of contact for those who are seeking resolution of a family law matter. However, people likely will first seek out legal advice (via lawyers) when they have a legal issue, with the courts closely linked to seeking resolution. Once individuals are in the court system, there can be a reluctance to endorse another method, because they may not want to disrupt the process which they have started, and they may think that they will get a much speedier resolution than what actually happens in court. The concern is that linking access to information through the courthouse may be “catching” people too late in the process. Currently, there are limited means to inform people of alternatives before they start an application or see a lawyer. A province-wide public service media campaign was suggested as a possible mechanism to resolve this issue.
Key mechanisms for learning about mediation services: The Family Law Information Centres (the FLICs) and the Role of the Information Referral Coordinator (IRC)
In Ontario, one of the key points of entry and education is through the Family Law Information Centres (FLICS), which are found at nearly every courthouse in Ontario. However, rather than being highly visible and having accessible hours, the reality is that many FLICS have significant space constraints (particularly in older, smaller courthouses) and limited hours, due to funding that is tied to client volume. The results are telling—the FLIC might be found at the end of a long, unmarked hallway, or the “office” might be a moving roller-cart with a printer and a few supplies, that are hauled to an available room, such as a lawyer/client meeting room. So, a FLIC in a large city like Toronto will have a full-time, five-day-a-week Information Referral Coordinator (IRC) in a well-identified FLIC space, while another, smaller site may only have an IRC on-site for a day or two with less clearly marked, hidden-away FLIC space. Ultimately, this impacts how accessible the FLIC resources are to individuals, particularly regarding access to the IRC and to information about mediation and other community and family law services.
This research project cannot resolve the issues of funding or lack of space, but it serves to highlight that the “frontline” FLIC location and services are key entry points for families, and that signage is critical, along with IRCs who are willing to walk the halls and reach out to potential clients to discuss mediation and access to other support services.
The Mandatory Information Program (The MIP).
Like the FLIC, the MIP was widely viewed by research participants as one of the most important opportunities to educate individuals about alternatives to litigation, such as mediation. The concern is that the MIP, as currently conceived and implemented, may not be achieving its purpose.
What is the MIP? The MIP is a monthly program offered at each courthouse that provides information to parting spouses and partners. Both Applicant and Respondents with a pending family law matter must attend the MIP in person, although they are allocated to different days. Ideally, there are two presenters—a lawyer and a mental health professional/social worker. During the MIP, the presenters take turns reading from a prescribed script, deferring to their areas of expertise. Typically, the presentation runs approximately two hours. The first 90 minutes address the legal and social issues that are likely to have some relevance to all attendees. The last 30 minutes is only required for those individuals who have children that will be the subject of the parental separation.
Given the MIP requirement, various suggestions were made to improve the MIP, including some that would influence mediation uptake:
Offer the MIP earlier in the process. Overall, the MIP attendees give positive feedback about the program, according to the MIP providers. MIP attendees have given feedback suggesting that they wish they had known about the MIP content long before filing in the courts. This is a conundrum, since offering ADR options prior to entering the court system would make more sense, but the MIP is mandatory after one of the parties has filed their application. As a result, the general public is not informed of alternatives before they can divert the matter from court to other services, such as mediation.
Expanding MIP access online. Currently, attendance at a MIP must be in-person, unless they have specifically sought a court order to access the MIP online (e.g., via Legal Aid Ontario’s online Family Law Information Program (FLIP)). Some participants in this research advocated making the current program available online. Those who could most use an online format may have work, childcare, mobility issues, or geographic distances, that make attendance much more challenging. Online access might also help address the issue of providing the information earlier in the process.
MIP Revamp. The presentation of the information in MIP is quite dry; there is a large volume of information delivered quickly. The MIP needs a revamp. One area that would benefit pertains to the information about mediation and other alternative dispute resolution processes. This information is quite sparse and is easily lost in the flood of information.
Endorsement by the Judiciary, Bar, and Other Court Professionals
Successful provision of mediation services is about the building of professional relationships amongst the mediators, judges, other courthouse personnel, communities, the legal bar, and the clients who pass through the door. Establishing strong professional relationships is critical for ensuring that mediation services are fully endorsed, locally at each courthouse, within the wider community, and more broadly as a socially valuable provincial family justice service.
Judicial Endorsement is Critical
Strong judicial endorsement of mediation services was highlighted as a key factor in whether families were likely to at least try court-annexed mediation services. As such, judicial attitudes and endorsement of mediation are key catalysts in building both respect and uptake of the court-annexed mediation services.
Many judges recognize that the provision of family law services, which includes mediation, is about a team approach for helping individuals who are in distress make their way to resolution. One judge commented:
It’s teamwork, working along with the mediators and the IRCs, and lots of people trying to help the litigants. I think it’s very rewarding to a judge, to be quite honest, and we all get very excited when we resolve files, so, we have the help of the mediators to do that… It’s so helpful to the litigants, because most people don’t want to be here…they’re nervous…we don’t want them to be, we want them to be moving on in their lives, and, as weird as this sounds, to have a good experience in going to court. I don’t know if it’s ever a good experience, but I think it’s certainly something the mediators strive to do. (J17, 291-301)
Two key strategies were frequently identified as “best practices” in helping judges remember the mediation option and offer it to families appearing before them: 1) A colourful daily reminder sheet outlining the services available that day and the mediators and times available; and 2) in-person introductions by the mediators, prior to the beginning of the court session, that permit connection and opportunities to put names to faces.
Legislative Support for Judicial Referrals to Mediation Intake
In Ontario, the Family Law Rules, per 17(8)(b)(iii) permits the court to order parties to undertake the mediation intake process. This provision does not permit a judicial order to engage in a formal mediation. In Ontario, a judge may only order mediation on consent of the parties. Nevertheless, at intake the parties are screened for inter-partner violence and power imbalance. Most critically, it allows the mediator the opportunity to describe the process to the parties and get an understanding of what issues they want to resolve. While not all families will progress to formal mediation, intake is a critical step to introduce parties to the mediation process and the ways it can assist. And, as some mediators noted, it is a way to educate the parties so they understand what mediation can accomplish and not confuse it with some form of marriage counselling.
Educating Lawyers About their Role in the Mediation Process
The judiciary has a unique perspective on lawyers and mediation services. Some judges noted they have been met with resistance from some lawyers when mediation is suggested. The impression is that some lawyers may not have sufficient training to understand how effective mediation can be and how the process can help clients. It was further noted this might be a “generational” issue, as newer lawyers are receiving much more education and training about alternative dispute resolution mechanisms in law school.
Some judges also suggested that some lawyers seemed confused about their role in the mediation process. One judge recounted such an experience:
I was in court and had a senior family lawyer in front of me on a matter very close to settlement, and I said, “Why don’t you try mediation today?” A really good family lawyer. And she said, “Your Honour, I don’t even know what my role is [at mediation].” And I said, “I’m pretty confident you can go in with your client and participate.” But then I thought, we [judges] have never really been told that, or questioned that, ‘cause I know when I was in practice, when mediation first started, and I had a case …. lawyers weren’t allowed to go in, which I thought kind of weird at the time. Anyway, I immediately spoke to [the service provider] and they said, “Lawyers can go in, absolutely.” So, I make that very clear when I’m talking to lawyers now if they’re hesitant. I’ll say, “Well, you can still participate—you’re there for supporting your client and to give independent legal advice.” That’s one thing that I think maybe the bar is a little confused about, as well (J17, 455-467).
Another judge commented that litigants in most cases have limited financial resources, even those with privately retained lawyers. Judicial suggestions to use mediation may allow the parties to negotiate and resolve their dispute within the limits of their financial resources.
Independent Legal Advice
Accessing independent legal advice (ILA) from a lawyer is an important part of the mediation process and gives mediation participants a level of reassurance that they can engage in the process with confidence. ILA serves as legal protection, because the mediator, even if trained as a lawyer, is not permitted to give legal advice as part of the mediation process. Fundamentally, access to legal advice allows parties to negotiate an agreement based on information about rights and obligations and an assessment of various outcomes, to fully consent to a negotiated settlement.
Parties are more fully able to discuss outcomes when they understand the legal principles that underscore their decisions. Individuals may also feel more confident in using the mediation process when they also feel that they have legal advice to assist in protecting their rights. If people do not feel they have the same entitlement or access to legal services, they may forgo mediation and prefer litigation, if only for the perception that the “legal” process serves as a form of legal protection.
One of the most critical times for obtaining ILA comes at the end of the mediation process, when the mediation agreement has been reached and parties seek advice before it becomes a legally binding document. It is important to note that the mediated agreement/mediation report is not legally enforceable ¾ that only comes when the agreement is “converted” into a signed separation agreement or incorporated into a court order. The most limiting feature is that access to affordable legal advice continues to be an obstacle, and current reductions in legal aid funding have only exacerbated this problem.
Conclusion
Mediation is now accepted as part of professional family justice services in Ontario. By and large, mediation is seen to play an important role in diverting cases from court and providing individuals an opportunity to address their issues in a more collaborative way that, ideally, enhances understanding, communication skills, and outcomes for children.
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Dr. Denise Whitehead is an Assistant Professor in Sexuality, Marriage, & Family Studies, cross-appointed in Sociology & Legal Studies, at St. Jerome’s University at the University of Waterloo, Ontario. [email protected]
Dr. Rachel Birnbaum is a Professor in the School of Social Work, cross-appointed in Childhood & Social Institutions at King’s University College at Western University, London, Ontario. [email protected]