Family Mediation as an Alternative
Family mediation promotes and facilitates discussion that allows the clients to exchange differing views, ask questions, discuss difficult topics and find solutions. It involves face-to-face meetings between the parties discussing difficult issues with a trained mediator. A family mediator is a communications specialist, and has learned techniques that assist in promoting mutual understanding and productive communication.
After a time spent with the spouses, a mediator can identify faulty communication, defensiveness, and misunderstandings that the parties themselves cannot see. A problem in the marriage can be reframed as a mutual problem to be solved together , and not the fault of one or another spouse. When parties in a mediation are encouraged to talk about their interests and needs (and not just articulate the result they think they want), a whole range of options becomes available to the couple. Because marital mediators are generally also divorce mediators, the mediator can help the clients identify and lessen behaviors and communication styles that could lead to divorce.
Its exciting to see Canada emerging as a world leader and standing up for human rights and dignity for all. We have expanded our role and our duty to include the world’s fight against terrorism, ongoing peacekeeping efforts, contributions to ease poverty, provision of humanitarian relief in times of disaster, the response to global warming and the environment.
There is however an important challenge that is still neglected by the number one country in the world. That is the challenge to save the most important Canadian asset, the Family.
Canada has been centre stage for an increasing number of high profile acknowledgments; along with these wouldn’t it be great to add “Healthiest Families” as a Canadian hallmark?
Unfortunately there isn’t one government jurisdiction that has the “family” as its mandate, which to a great extent is a major reason for the mess. Doing so might be a way to provide a focus for resolution of the many concerns.
As a catalyst, how about a single government mandate and accountability similar to those within Heritage, Environment, Indian Affairs, Finance, Health, etc. to focus on Family issues?
How about the office of Family Affairs or a Minister of Families that would integrate all family related issues? The objective would be ensuring that Canada’s families are #1.
This office like other government agencies would have the mandate to understand and champion family needs. The Family Success Index would be measured and added to other vital statistical benchmarks such as health of the economy, unemployment, inflation, healthcare, education, pollution, fish stocks, greenhouse emissions, interest rates and cost of living etc.
As the fundamental building block of our nation does the family not warrant an effort at least comparable to these?
Is it not disturbing that such a large percentage of our children are brought up in poverty with family instability, have experienced the suffering caused by disintegrating family relationships and are then expected to themselves nurture stable family environments?
Is it not sad that in our rich society, the break-up of families is a major contributor to child poverty, juvenile delinquency, crime and is the number 1 cause of personal bankruptcy?
Is it not significant that in our successful country the revenue generated by personal dispute lawyers outpaces that of our largest industries?
If strong families make strong communities and strong communities make strong nations, does it not then follow that it is significantly important to ensure that everything possible is done to preserve our greatest asset….The Family.
Wouldn’t it be unique for Canada to lead the way with a non- partisan political effort (a family of sorts) that could work together for this cause?
With Shared Parenting as presumption:
Kids keep their father
- Makes amicable separation more of a reality
- Eliminates the emotionally and financially devastating custody fights where in the end everybody loses
- Reduces the requirement for support enforcement as all family members will be treated equally.
- Ensures access is not denied
Reduces the incidence of divorce in the first place. 75% of divorces are initiated by those who within the current system know they can simply walk away from the marriage and the court will give them everything. In jurisdictions where joint parenting is a presumption, the divorce rate has quickly dropped by 25%.
By removing courts from the lives of families would provide the following benefits:
Better opportunity for reconciliation allowing the possibility to recover the family “on the edge ”.
Facilitate healing of relationships to the extent that the family can remain in tact for all family members concerned.
Eliminate the court delays that prevent families to recover and work together to affect a new beginning.
Eliminates the obscene expense of legal action that diverts desperately needed funds from a family in crises.
Allows all family members to be treated equally with dignity and respect.
Removing the court inflicted gender bias that sabotages reconciliation. By making a level playing field increases immensely the possibility of alternative dispute resolution actions such as mediation.
Eliminates the confrontational court approach that pits mom against dad, using the kids as pawns, forcing the kids to choose between parents. This would help the family unit and minimize the alienation of kids, from siblings and parents.
With specific identification of default positions in law, accountabilities, rules and penalties, the need for enforcement will be all but eliminated and society’s resources instead focused on situations of legitimate abdication of responsibility or genuine needs of families in hardship.
Saving the family would minimize the occurrences of child poverty, low standards of living and bankruptcy.
As needs of the family change, adjustments can be made without court action and the resurfacing of past hurts.
Huge savings to taxpayers. The $billions spent on lawyers, judges and courts can be used instead to help prevent destruction of families and minimize incidence of poverty and resolve issues with a more humane and family centric approach.
It is a contradiction to “the children’s best interest” that the legal profession, forced upon families in distress under the current environment is motivated and rewarded by inefficiency and time spent rather than results attained. Unless there is an incentive to results how can the opportunity for success be maximized.
Where are the “Measurements of success”? They might include, # disputes resolved, $/procedure completed, % cases negotiated out of court (not before trial), time for completion of process, relative satisfaction by consumer through accountability audits and satisfaction surveys. Although arguments would counter with honourable intentions, there are no rules of law, audits or liability and the profession is self regulated!!!! If lawyers were ever forced into a “pay for performance” mode, like most professions these days, I’m sure significant changes would happen over night.
Lawyers and judges deal with individual cases. Each issue is a separate task and there is no conformity or continuity. They are paid to argue for their client. There is no incentive to do what’s best for the family. They do not look at the big picture, which, in this case should be the family unit as a whole.
An example in my case is my ex wife’s lawyer. We had a substantial separation agreement in place, which came into effect prior to May 1, 1997, before the tax treatment of child support was changed to discriminate against families. Everything should have been done to preserve that agreement. It was in the best interest of everyone in the family (including my ex). Yet at first opportunity my ex ’s lawyer’s advice was to challenge on another smaller issue and thereby nullify the overall agreement. Over the past 10 years this alone has taken many tens of thousands of dollars away from our family that in addition legal to fees for subsequent court hearings has caused much emotional stress and further loss of family relationships.
Over the years, I’ve had some ideas but was basically frustrated in thinking up a solution that could, in short order, replace the courts. I must give credit to Judge Speyer on this one and his irrational decision that forced me into bankruptcy….
The answer, in fact, is Bankruptcy:
Bankruptcy is actually very much like divorce. Bankruptcy represents the loss of an individual ’s ability to recover from a breakdown of their financial viability with the objective of being given a fresh start.
Similarly, divorce is the breakdown of family relationships that culminate in separation of family members who also need a “New Beginning”.
The bankruptcy process is much more effective and efficient as there is no incentive to needlessly drag out the process with useless court actions since by this time there is no money to be made by the legal industry.
The Bankruptcy system is in place, has legitimacy in process, the laws are better defined and most importantly, contrary to family law, limits damage and has the objective of giving the bankrupt a fresh start.
Advantages of the Bankruptcy process vs Family Law Family trustee vs lawyer.
- Family trustee sourced and trained from mediation, social work faculties that promote ADR (Alternate Dispute Resolution) as opposed to antagonistic court process.
- Trustee represents in court, distancing families from destructive court actions.
- Trustee is appointed for period of bankruptcy and does not vary case to case.
- Set time limit and conditions for release of obligations and rules to allow new beginning.
- Universal cost of bankruptcy stated up front with payments tied to income.
- 238
- Bankruptcy law and jurisdictions much better defined. Consistent application of laws.
- Default rules and exceptions clearly defined.
Side Benefits
In addition, other benefits include decreased costs of building court houses, of courts, judges, lawyers and associated costs such as enforcement offices. Relief to what has been described by the judges themselves as overburdened courts. Instead tax payer funds can be used to help save families from divorce or provide a more humane approach that does not financially devastate the family.
So How would this work….some thoughts. The first step would be to have the Divorce Act updated with a presumption of shared parenting and default positions clearly articulated as is done in the Bankruptcy Act and most other legislation. In the following I use the term divorce trustee to show a function analogous to a bankruptcy trustee.
As with bankruptcy, there should be an attempt made prior to divorce to avoid bankruptcy or in the family case divorce. In bankruptcy there are creditor options or arrangements. In divorce, this could be various means to attempt reconciliation.
If this fails there is an application made for bankruptcy or now divorce.
The bankrupt or divorcee uses the services of say a “divorce trustee” as opposed to a lawyer.
The divorce trustee will clearly define the process, steps and accountabilities of divorce and as with bankruptcy the divorced couple is mandated to attend counselling sessions.
The divorce trustee will verify all pertinent family and financial information.
If children are involved the Divorce Act needs to reflect default application of rules. If there are exceptions (rather than the norm) similar to bankruptcy, these become separate matters.
The divorce trustee communicates with his trustee counterpart to arrive at a mutually beneficial solution to the issues, not unlike a bankruptcy trustee dealing with creditors.
As in bankruptcy a plan is put in place and monthly reports are submitted to ensure compliance. In divorce the plan would include both the Parenting Plan and the Financial Plan.
The trustees who from time to time make adjustments attend court on behalf of their clients ensuring legitimacy in overseeing management of the plans.
Once the conditions of bankruptcy or now divorce are met or spelled out into the future, the parties are released.
