Increasingly over the past 10-15 years the courts have been inundated with family law cases. This has caused a considerable backlog of court cases, generating needless delay and expense for separating couples attempting to resolve their family law issues (child custody, child support, spousal support, property division, ownership & occupation of the matrimonial home, etc.).
This increased stress on the court system and the increasing cost of legal services for separating spouses has motivated those involved in the system to look for more cost effective alternatives. These alternatives have included the provision of family law legal information through various government websites, self-help group websites, programs put on by the Ministry of the Attorney General at courthouses through Ontario [called Mandatory Information Programs] and community agencies and organizations establishing educational programming for parents and the children going through the separation process.
One of the most popular alternatives to judicial dispute resolution that has attracted a lot of attention are the mediation initiatives that have sprung up around the province. However, just as with other consumer services there is an increasing need for the regulation of those holding themselves out as mediators or arbitrators.
There is little formal control over the quality or the credentials of those offering mediation services. As a family law lawyer it has been increasingly common to hear horror stories from clients complaining about the lack of clarity of resolutions achieved in mediation or that various topics or issues that should have been canvassed in mediation, were not. I have even seen separation agreements written by mediators who have performed the mediation in which they “assisted” the parties in achieving a resolution. Sometimes these separation agreements [or the supporting documentation with them] makes no mention of whether the parties have had an opportunity to receive independent legal advice throughout the process or before they have signed the separation agreement.
In the rush to save money, separating spouses often end up causing themselves further grief, stress, and expense when the need arises to interpret a clause of a poorly drafted agreement or to deal with an issue that was not contemplated in the agreement drafted by the mediator.
Family mediation has reached the point of general acceptance by the population and thus requires regulation – whether that be self-regulation or governmental regulation is the pressing issue for these service providers and for those receiving mediation services.
At the present time mediators providing services in Ontario within the family court system must have accreditation or certification. At present Family Mediation Canada, the Ontario Association of Family Mediation and the ADR Institute of Ontario Inc. have criteria by which they assess members who seek to provide family mediation services. There are requirements for specialized training and a minimum amount of relevant work experience. However, for those providing mediation services outside of the court system there are no similar requirements before hanging up a shingle as a mediator. While many family law mediators are lawyers who therefore have professional qualifications through their law society there are others, such as social workers, clergy, etc. who offer services as family law mediators who may or may not have the skill sets, education and training to provide quality services to a relatively vulnerable population going through an emotional stressful journey.
The Family Law Lawyers at Barriston Law have been offering mediation and arbitration services on an informal basis for several years. We are now formally offering Mediation and Arbitration services through ‘Barriston Resolution Services’. Tom Dart, Kim Kieller, Doug Manning and Jodi Armstrong have, among them, over 70 years of combined experience as family law lawyers and over 25 years of experience as Mediators and Arbitrators sanctioned by the Ontario Association of Family Mediation and the Arbitration Institute of Ontario. We bring a wealth of experience and creative problem-solving strategies to clients who wish to retain our services to act as Mediators or Arbitrators in their dispute or to represent them as their lawyer within the context of Mediation and Arbitration processes.
By Douglas J. Manning, Partner, Certified Specialist in Family Law