Frequently Asked Questions

Why is Court not a good way to resolve Family Law and Estate Disputes?

It’s all about facts versus feelings. Conflict within close relationships, especially in the family setting, usually arises from dashed hopes and expectations, or feelings of betrayal and loss of trust. We base our hopes and plans for the future on our relationships and family structures and we count on them to give meaning and direction for our lives. As humans, we have a large emotional investment in these relationships. When such relationships break down for any reason, anxiety and fear about the future is an almost universal experience.

Anger and hostility is a common reaction to such feelings of betrayal, loss of trust and fears about our future. This can make it exceedingly difficult for people caught up in such disputes to think clearly and engage in good decision-making. People caught up in such situations frequently make decisions (and give their lawyers instructions) while in a state of anger or fear, or in reaction to perceived provocations from the other person(s) in your conflict. When reacting to such feelings, people tend not to appreciate what is actually in their best interest or in the best interest of their children.

The court system, however, doesn’t process cases or make decisions based on feelings. In the area of Family Law in particular, legislative provisions in the Divorce Act, Canada and in the Family Law Act of Ontario, as well as a long body of case law, strips feelings out of the litigation process. Overworked judges haven’t got time nor the inclination to determine whose “fault” it was that a relationship broke down.

There is no connection between how somebody behaved during the relationship and what the financial outcomes will be. It is a “no-fault” system, which is often not consistent with how people actually feel about the breakdown of important family relationships.

Similarly, in Estate disputes, while money is usually the major surface issue, there are invariably all sorts of feelings about the family structure and family dynamics which led to a dispute about the money in the first place. People often bring years of family history, perceptions about one another, old slights and hurt feelings, and other personal dysfunction to such estate disputes.

Those underlying feelings can drive a dispute far longer than the amount of money at stake will possibly justify. As people get entrenched in their positions and spend more and more money on their lawyers to support their positions, it becomes increasingly difficult to consider compromising. Legal costs mount up exponentially because the intense feelings involved prevent people from making wise financial decisions.

In the court system, judges have little time or patience for how people feel about the Estate dispute or who caused it. The focus is strictly on formal rules and obligations and analysing whether a particular party has met the legal test or standard that applies to them. When the answers to such questions are not entirely clear, and there are arguments to be made on both sides, that can lead to an uncertain outcome. But the costs of having a trial to decide who is correct (often involve several lawyers in an Estate matter) and forcing a judge to choose between competing positions, can be horrendous. A large part of the estate can end up going to legal expenses.

Mediation, by contrast, gives people an opportunity to express and explore their feelings. Feelings may not make any practical difference in the final outcome, but the parties can have an opportunity to talk with their mediator about how they each feel regarding the situation, and that sharing of information can help “lower the temperature” and allow them to proceed with a constructive discussion about how to move forward with their lives.

Mediation is not counseling or therapy, and it is not aimed at causing people to reconcile, but it also doesn’t ignore how people feel about what has happened and allows them to explore constructive ways in which those feelings can be expressed and acknowledged.

What are the costs of court compared to a mediation or arbitration process?

It is typical for any proceeding that has been in the court system for a while to run up tens of thousands of dollars in legal cost, between both parties. When lawyers must charge several hundred dollars per hour for their time, and each court appearance requires many hours of document preparation and honing their arguments, plus the time actually spent at the court house, each step of the proceeding can easily cost each party $5,000 to $10,000 and there are several steps before you actually get to a trial.

Then there are the costs of hiring and paying expert witnesses for things such as valuation and accounting evidence (usually a few thousand dollars at least), plus $5,000 to $10,000 for each day of a trial (including the preparation time) and the final submissions to the trial judge, and the follow up steps after the judge makes his/her decision. It’s no wonder that people can find themselves spending $30,000 to $50,000 just getting to a trial, plus the costs of conducting the trial itself. Ordinary people simply cannot afford this luxury.

What are the benefits of Mediation and Arbitration?

  • The proceedings are private and confidential, rather than in open court and documents are not placed into a court file which could be accessed by others.
  • Parties are able to select their preferred, neutral third party (mediator or arbitrator), based on that person’s reputation, training, expertise and interest in the subject matter of the dispute, rather than being assigned a random judge to hear their case. Also, in Ontario’s court system different judges usually conduct different steps in the case instead of the same judge from beginning to end, which means that each new judge has to be re-educated by the lawyers about the dispute and what the issues are. That causes duplication of work and effort.
  • Parties and their lawyers can agree on the commencement date for the mediation and/or arbitration, and on how the evidence will be presented, without being tied to the “one size fits all” standard litigation process, court timetables and rules and the costs and delays which accompany those rules.
  • A more summary and streamlined process can be tailored to the needs and interests of the parties, when desired, saving the expense of paying your lawyers to prepare for and attend multiple court dates, such as adjournments and a series of judicial conferences.
  • Parties to a dispute usually share the cost of retaining their neutral third party (mediator or arbitrator) equally. If experts are needed to assist with issues like valuing assets or assisting with tax issues, parties can jointly retain a mutually agreeable expert as well, and share that cost, instead of each hiring competing experts (which is common in traditional court litigation). This cost sharing can save parties many thousands of dollars compared to the court process.
  • Mediation allows people a relatively low-cost opportunity (compared to time spent preparing for and sitting in court) to resolve their dispute without risk. Discussions held in mediation and concessions made by any party while negotiating, are “off the record” and “without prejudice” settlement discussions, and cannot be used later in court if the matter does not settle at mediation.
  • Arbitration decisions are given the same weight and can be enforced in the same way as a court Order. Rights of appeal can also be preserved, in much the same way as a lower court decision that a party disagrees with and wishes to challenge.
  • The mediation or arbitration takes place in an office/conference room setting, which provides personal comfort amenities and is less intimidating for parties than a regular courtroom.
  • As a result of this level of control over the process, resolving disputes by mediation and/or arbitration is more expeditious and cost-effective than the standard litigation process, even after factoring in the expense of hiring the neutral third party (the mediator or arbitrator).
  • In Family Law disputes, in particular, the delay caused by the requirement for a case conference before any motions can be argued, as well as settlement conferences and trial management conferences before a trial takes place, together with the cost and acrimony created by filing multiple sworn financial statements, preparing affidavits which tend to escalate the dispute and so on, makes private mediation and/or arbitration an appealing alternative.
  • In Estate Disputes, getting people together with a neutral third party to sort out what is really at issue and how to satisfy everyone’s needs and interests at an earlier stage, before the lawyers have eaten up a large part of the estate in legal costs, is a usually a much wiser investment than continuing to litigate for years.

The key take-away from the above list should be that parties in a dispute with each other, who use their own private dispute resolution process, can maintain a much greater level of control of their process, and keep their costs lower, than they will using the courts.

Can I force someone to participate in mediation or to arbitrate our dispute?

Mediation and Arbitration are both consensual processes, which are an alternative to the traditional court system resolving disputes. Nobody can be forced to participate in mediation of their dispute (aside from court rules in a few jurisdictions of Ontario). All parties must be persuaded of the advantages to resolving their issues in this private manner, outside of the court process.

A person can also not be forced to arbitrate a dispute unless they have already signed a Mediation-Arbitration contract and the mediation phase has ended without a settlement. In that limited situation, because they are already contractually bound to arbitrate if the mediation was unsuccessful, they can be forced to arbitrate.

How Do I Start a Mediation or Arbitration Process?

Sometimes the lawyers for parties in a dispute will persuade their respective clients to pursue this alternative method of dispute resolution. In that case, the lawyers will contact the mediator/arbitrator to initiate the process, and will discuss whether they want mediation only, arbitration only or both (Med-Arb).

At other times, parties themselves will have heard horror stories about the court process, and want to pursue mediation before getting lawyers involved. In that case, one or both will contact the mediator directly, usually after first discussing with each other and agreeing to do so. If you are in that situation, and reading this, feel free to pick up the phone and call my office to speak with me or my clerk, or send us an email;

Ted Dueck 519-884-2620 ext. 224

Heather Grant 519-884-2620 ext 223

What does your mediation process look like?

When mediating separation and divorce matters for clients who privately retain me, I first meet separately with each spouse for about an hour, to understand their individual perspectives on the situation and what each of their needs, concerns and priorities are. One of the topics to be covered in such meetings is screening for power imbalances and domestic violence and any accommodations which might be needed for that.

Assuming everyone is comfortable with proceeding after those intake interviews, I then schedule a joint session, in which we start by reviewing and signing my standard mediation agreement, which discusses my role as an impartial third party to assist in negotiating a separation agreement.

Once that preliminary stuff is dealt with, we move to collecting information from both parties, confirming and clarifying the points on which there is already some agreement, and determining in what order you want to approach the issues that are outstanding. Then we work through them, issue by issue, as efficiently as possible.

When I am being retained by lawyers for the two parties, and those lawyers are attending and participating in the mediation, I typically schedule a brief phone conference with the lawyers to discuss the matter, and ask the lawyers to do the screening work for me, and to prepare a mediation brief or memorandum outlining the issues and any important documents. This takes the place of intake interviews I would otherwise schedule with each party myself.

When mediating for a separating couple who do not have their lawyers present, I try to limit joint mediation sessions to approximately 2 hours, because people tend to get overloaded and shut down emotionally, if we go much longer. This usually means a few sessions are required to get the various issues resolved, before reaching the point where an agreement can be drafted.

I use various pieces of software developed for the legal profession to perform support and tax calculations, and property equalization calculations. I also provide sample parenting plan templates for people to consider and discuss to help guide your decision making within appropriate parameters.

In matters where I have been retained by the lawyers for the parties, or their case is already in the court system, we usually schedule a full-day session for such mediations, because a lot of the background work has already been done by the lawyers and everyone will want to focus on getting the remaining issues resolved, if possible. In those cases, if the matter is settled, the lawyers will draft Minutes of Settlement or a separation agreement.

For people who retain me without their lawyers being involved, I normally prepare the draft separation agreement. It is always recommended that parties get independent legal advice (ILA) before signing any agreement I prepare for both of them, as no one is perfect and something could have been missed that another lawyer would catch.

The advantage is that when you go for ILA after I have drafted your agreement, you are taking along with you not only a draft agreement, but also a net family property calculation, and support guideline calculations and (if applicable) a parenting plan, all prepared on software and using formats that independent lawyers will recognize and feel comfortable with.

This makes the ILA process much less likely to undo or duplicate everything you accomplished in your mediation (as can sometimes happen when non-lawyer mediators are used). If you choose not to get ILA, I can’t force you to do so, but then I will insist that you sign detailed waivers which make it clear that I was not providing legal counsel to either party and only acted as the impartial mediator for both.

Why Use a Lawyer as our Mediator?

Family law and estate disputes can involve complex legal principles and nuances, as well as complicated tax rules and valuation principles. Non-lawyer mediators, no matter how good their mediation skills, rarely are familiar with these issues due to lack of relevant training and experience. Here are some of the questions you should be thinking about and asking when selecting your mediator:

  • Do they use the specialized “DIVORCEmate” software that family law lawyers use to perform these calculations and explore various scenarios, or are they using some template of their own design?
  • Do they know how dividend income is taxed, versus capital gains, versus regular income, and how to make the appropriate adjustments for different types of income when calculating support?
  • Do they understand and can they explain the difference between a “deduction” and an “exclusion” and how to apply those properly on a Net Family Property (NFP) calculation, or do they know how the tracing principle works for excluding inheritances and life insurance proceeds from equalization?
  • Do they know when a court is likely (or not) to enforce a loan agreement between a parent and a child?
  • Do they understand the costs of disposition of an asset and when it is appropriate (or not) to calculate and include such costs in the NFP calculation?
  • Do they understand the realities of operating a small business or a farm or the specialized equalization rules which may apply to such enterprises?
  • Have they heard of “capital cost allowance” and “recapture”, and how that affects calculating the tax on sale of an investment property?
  • What do they know about business valuation principles and the assumptions used by valuators? Have they ever cross-examined a property appraiser?
  • Do they understand how to calculate the benefits of income splitting and/or each spouse claiming a child as an eligible dependent, and when that can properly be applied to allow a separating couple to pay less to Canada Revenue Agency and keep more money for the family?
  • Are they familiar with reading the Schedules attached to an income tax return and/or corporate financial statements, in order to understand the fine details of business income and rental income, and the deductions from such income, as well as the adjustments to such income set out in the Child Support Guidelines?
  • How familiar are they with when a court will (or will not) impute income to a party?
  • For an estate dispute, have they ever prepared a set of accounts for a judge on a “passing of accounts” and do they know what is involved in doing so?
  • Do they have familiarity with the obligations of an estate trustee and when a court is likely to remove someone as a trustee?
  • What do they know about the different types of legal capacity and the tests for each?
  • Do they understand the rebuttable presumption regarding property held jointly by a parent and a child, established in the case law?

These are just some of the questions to ask a non-lawyer mediation company before you opt for one of their packages. If the answer you get is that you will be referred out for such advice, or some expert will be brought in to assist with those questions, that’s a step in the right direction but how much extra will that cost you?

An experienced family law lawyer or estate litigator can answer those questions immediately, or know when it is actually necessary to retain an outside expert for assistance, but non-lawyer, accredited mediators are often not sufficiently familiar with these issues to even be aware of the questions they should be asking. These are items that need to be addressed during the mediation, rather than at the end, because the answers can change the calculations.

What are the drawbacks of not using a lawyer to mediate your dispute?

  1. It can make an important difference when the person assisting you in negotiating your separation agreement asks the right questions and provides critical guidance before anything is drafted by a lawyer. It can be very frustrating to think you have made a deal in mediation, using a non-lawyer, then visit a lawyer for independent legal advice only to learn for the first time that an incorrect assumption was used or important item was not considered in arriving at your agreement, or a calculation error was made because the proper software was not being used. When this happens, it can re-open the entire discussion and negotiation, leading to sharply increased costs.
  2. A non-lawyer mediator cannot actually draft your separation agreement for you. Drafting of contracts is a legal function reserved to licensees of the Law Society of Ontario. For a non-lawyer to draft a separation agreement amounts to unauthorized practice of law. That is why mediation companies usually advertise that a lawyer will draft the agreement for you at the conclusion of the mediation. When a licensed lawyer is your mediator, he/she can also draft the final contract. It does not need to be outsourced to anyone else. The benefits are two-fold:
  • The person who was actually present during the mediation and assisting the parties to reach their agreement is the same person drafting their final document. There is much less chance of things getting “lost in translation” or having disagreements arise between separate lawyers for each party about the drafting and having the agreement you negotiated potentially fall apart because of different views about an issue.
  • A lawyer-mediator, when drafting your contract, will keep in mind the questions and concerns another lawyer might have when reading it, or providing independent legal advice. A mediator who has spent decades representing parties as a lawyer on both sides of such negotiations can anticipate the questions and concerns another lawyer may have when providing independent legal advice to one of the parties, and ensure that those questions are appropriately addressed up front.

This actually saves on lawyer time when all is said and done and, as a result, it also saves both parties a lot of potential and unnecessary extra expense.

Won’t it be more expensive to use a lawyer-mediator?

No. People naturally fear that their expenses will go through the roof if they involve lawyers in their mediation. For that reason, one of the chief selling points of non-lawyer mediators is that their services are less expensive because they avoid using lawyers until absolutely necessary, to draft the agreement or process a divorce.

What they don’t tell you is that an average, low to mid-conflict separation, can often be mediated by an experienced lawyer-mediator in 3 – 4 sessions of approximately 2 hours each, plus the intake interviews and another few hours of drafting time to complete the agreement. At an hourly rate of $400, that lawyer-mediator can have you in and out, with a completed separation agreement for somewhere in the ball park of $6,000 to $7,000, plus HST. That is a total cost, shared equally by two people.

Most non-lawyer mediation companies have packages that start at $4,000 or $4,500 **per person** and range upwards from there. And they only get a lawyer involved near the end, instead of all the way through your process, or some of them send you off to your own lawyers with a simple memorandum of agreement and you have to separately pay your lawyers to do the formal drafting of the contract. Which of those approaches looks like the better deal?

What do your services cost?

I charge $400/hour for my time spent. Approximately 15 hours is a general range of time most private family law mediations require, which includes intake meetings, several joint meetings and drafting the agreement and reviewing it with the parties. This time frame can vary up or down somewhat depending on the complexity of the issues that have to be resolved but that is the norm.

When mediating estate disputes it can be more difficult to estimate how much time will be needed. If the parties have been referred to me by lawyers and are represented during the process, one full day is often sufficient. If the parties are not represented and if there are more than two parties in the dispute, the time required can be considerably longer and may require multiple meetings.

In the case of mediations referred to me by lawyers, in both estate matters and family law matters, where those lawyers have prepared briefs for me and are participating and assisting their clients during the mediation, the time required is generally about 10 – 12 hours, including preparation time and conducting the mediation.

Normally the parties share this cost equally, subject to any special arrangements that may be negotiated. I ask for a reasonable retainer up front, to cover the estimated average time required for the issue that needs to be resolved. Any unused part of the retainer is refunded to the parties.

What do you offer for that cost?

  • The experience of 40+ years appearing before judges in motions and conferences and trials, conducting examinations of witnesses and understanding the difference between suspicions and evidence
  • The wisdom and insight gleaned from working with literally thousands of clients over my career, and what is often motivating their disputes
  • Analytical skills to get to the heart of your issues quickly
  • Substantial experience with the corporate and tax planning issues that affect business owners, professionals and farmers who are experiencing legal disputes