Mediator vs Lawyer in divorce [Resolved]
I found myself in your shoes back in 2007, a few years before I became a divorce mediator. Much like you, I was struggling to decide between going the divorce lawyer or divorce mediator route.
I had three kids, aged between 5 and 12. We were living in a 4-bed home we’d bought two years earlier in a popular part of town, within earshot of the GO train. Between us, we had some modest investments but, like most families, we were struggling to balance the need to save money with the demands of supporting our young family.
We had a few financial problems. A recent rental property purchase was draining our cash flow, and the resulting stress was almost certainly a factor behind the break-up of our 15-year marriage. My wife moved out of the home at the end of the school end.
We needed external help to resolve our differences, so I researched our options. It was during this that I realized that the family law system in Canada was broken. And people in-the-know agreed with me, even the Chief Justice of Ontario Warren Winkler was troubled by the outcomes in his family courts.
Court proceedings were costly, complicated, even debilitating for some. Yet this was the norm, the accepted way of things.
The cost of a litigated divorce through the court system in Canada was revealed in ‘Canadian Lawyer’ magazine . It was a staggering $12,000 per individual. And if that case went to trial, that cost would skyrocket to $45,000 per person.
Those kinds of sums isn’t an option for most people. They certainly weren’t for me back in 2007. I thought about going it alone, representing myself in court. A common approach people take according to a survey by the Toronto Lawyer’s Association. This revealed that 57% of family law litigants represent themselves in court, usually because they can’t afford a lawyer (National Post Report). The National Self-Represented Litigants Project (NSRLP) at the University of Windsor found that only 14% of those who defend themselves win their case.
I also discovered that the number of people self-litigating is constantly growing due to the expense of hiring lawyers. It means self-representation in divorce cases risks becoming as commonplace as a visit to the passport office. There’ll be less and less of the profound and venerable courtroom hearings you would expect from something as important as this.
Back then, taking the court route concerned me, because I was worried about the amount of time a judge – who faced their own budget pressures – would actually have to devote to our case.
Winkler: No more studies needed!
And I was unsure whether an employee of the Crown was the best person to plan for my family’s future. Someone who’s never met me or my family. Who has no understanding of our specific needs nor any inkling of why I and my wife had ended up in court? There had to be another way.
Ending your marriage by taking your spouse to court is something I’ve always found odd. All those affidavits, motions, applications and summonses all seem like overkill for two people who were once happy enough to marry each other. Sure, things may have got edgier between us since those days, but it was still possible for us to have a civilized discussion and figure out between ourselves how to allocate our assets and support our children within the framework of the law.
It seemed to me that all the stress involved came from the litigation and the lawyers. Going to court was a process in which nobody won, but in which there were multiple ways of losing. That got me searching for a different option, a more sensible, practical alternative in which myself and my former partner could work things out between ourselves, meticulously shaping the future direction of our family while living apart.
Together, we tried the self-drafted separation agreement route, but that seemed to be causing more conflict. We had issues to work out and, despite engaging in some email tennis, trying to solve them, we just couldn’t agree.
All that emotion you’re storing up during your denial phase is going to have to come out sometime. And sure enough, it will. Anger soon rears its ugly head. I found the need to blame my spouse for what she was doing in my world, and our kids’ lives. And when other things in the world went wrong – job problems, car issues, lousy weather, that kind of thing, it was easy to blame my estranged wife for those too, even though they weren’t her fault. The anger also clouded my memories of my time with her, and when I looked back I saw nothing but negatives. Looking back, it was another essential emotional phase I had to go through. Although I made sure none of my kids heard anything I was venting about their mother.
There’s only so much anger you can vent against another person before you grow weary of it. Then you start to get a little more reasonable. You realize this is having an emotional impact on you that’s hard to handle. You’re looking for a way out to relieve the stress, puncture that anger-filled balloon. And that’s when 
you’ll approach your spouse with the express intent of sorting things out so you can get your life back on track. During this phase, you’re often willing to accept that actually, yes, your spouse did have some good points and you did enjoy some great times. It’s almost the total opposite of what you were thinking during the Anger phase.
Sometimes, people who’ve been ditched take steps to get their spouse back no matter what, even at the expense of their sense of self-worth. Those who do the ditching? Well, they just have to wrestle with the doubt of whether or not the decision they’ve made is the right one.
After this, her demeanor changed. She became more empathetic and compassionate, and gently said, ‘I’m so sorry.’ Then she turned and left.
Handling A Divorce Application
Obviously, I knew what a Divorce Application was, but I didn’t really know what it meant. The documents certainly looked official, they had a lawyer’s name on them, but I needed to talk to someone, and that someone was Kevin, my hockey buddy and a much-respected family law lawyer in my area of town. He explained to me the purpose of the documents I’d been handed and what I needed to do.
To summarize what he said, the divorce application I had been handed was a kind of shopping list of all the things my wife’s lawyer had filed with the court. Mine and her name, the names of our kids. What the judge needed to do. Kevin stated the cold hard reality of the situation – the self-written separation agreement my wife and I had produced wasn’t going to get it done. My spouse had upped the ante, taken the divorce process to a higher level. Our separation was now in the hands of the Family Law Courts.
What is the difference between a lawyer and a mediator?
When lawyers get involved in divorces, things get adversarial, particularly during litigation. If your separation has been fairly smooth up until now, expect to enter rough waters. After all, the lawyer is being paid for their services, and it’s up to them to extract the most fortuitous result for their client, no matter the cost or the damage caused. Kevin told me my wife already had a lawyer to represent her, now I needed one to represent me. How you hire a lawyer differs depending 
on the province or county you’re in, and the type of lawyer you’re looking for and is the subject of another article.
Suffice it to say here that once you and your spouse have your separate divorce lawyers, you’ll be looking for them to establish, negotiate and resolve the issues resulting from the end of your marriage. If they can’t reach a conclusion between themselves, your divorce will move into the family court system and onto the dreaded litigation.
A date for the hearing of your case in court will be agreed upon. Your lawyers will begin preparing for it. Documents will be submitted to the court. Then, on the day, the arguments on both sides will be heard, experts and witnesses will testify, and your kids might even be involved. Presiding over all this, a family law judge who will ultimately decide the allocation of marital assets, the nature of parental responsibilities and child custody and other matters. It’s all out of your hands.
If you want a divorce, negotiating the terms of the separation is where you’re likely to be in dispute with your spouse and need a mediator. They will help you resolve any financial or custody issues so that your marriage can end without getting the courts involved.
Even though the divorce mediator plays an active role during negotiations, the partners involved will enjoy full control over what’s discussed and the decisions that are made. Contrast that with arbitration and litigation, in which a judge takes control and makes all the decisions.
After Kevin had explained this to me, I still needed a little clarification. Couldn’t Kevin – who, remember, was a lawyer – mediate for me and my wife? After all, he was someone we both trusted and he knew our family.
But Kevin explained that most mediators aren’t lawyers, because being a mediator takes a special skill set. He’d been trained as an advocate, which he said was like being a hired gun and totally targeted on getting what the person who hired you wants. That’s not what mediation is all about. And anyway, Law Society rules would prevent him from representing both of us.
Kevin also addressed my worries about my divorce ending up in court, quoting a statistic that revealed that family cases in Ontario ended with out-of-court settlements in a massive 96% of cases. So very few actually went to trial. That begged the question why did so many people endure the headache and cost of hiring litigation lawyers if it was odds-on there’d be an out-of-court settlement? Surely it made more sense to proceed through separation with a spirit of compromise front of mind, rather than enter into an adversarial process?
Kevin knew where I was coming from and advised me to find a quality, impartial mediator who understood my concerns and was focused on finding a resolution to complicated financial issues associated with my divorce. Kevin also said there was no need to get a lawyer involved during mediation unless myself or my partner opted for one or needed legal advice as mediators do not provided legal advice.
It sounded like a great option – no litigation, no courts, no expensive lawyers. And it was a way forward that had been recommended to me by, of all people, a lawyer.
After having been served with a Divorce Application by my spouse and talking to Kevin, I responded with an email that outlined a way we could move forward, with mediation at its heart. In the message, I outlined my reasons for wanting to take this approach
Conclusion
My divorce had been stuck in the court system for 20 months before we entered a mediation agreement for family mediation. And pretty much immediately, it gave us a sense of control at a time we were experiencing anxiety and disorientation. The process diffused our fears by creating a non-threatening structure in which we could make important decisions about our future separate lives.
During our early mediation sessions, we addressed short-term issues that remained unresolved and were adding to our stress levels. In later meetings, we tackled the bigger questions such as parenting schedules, managing finances, selling the family home and establishing separate households. The sessions gave us a deeper sense of security which allowed us to focus, with less anxiety, on the major tasks relating to our separation.
How long does mediation take? In all, mediation took us about two months, which was about five sessions. The length of the process varies from couple-to-couple, depending on the decisions you make during the sessions. Our mediator played their role to perfection, assisting us to reach an agreement that suited us both, without taking sides. We both had a voice during the meetings, a major contributory factor to us reaching equitable outcomes around property division, spousal support, child support, custody, parenting plan arrangements and some minor concerns that needed resolving. We also learned new cooperation skills during mediation, and the whole process was way more amiable than our previous experiences with a lawyer, during which there was hostility, confrontation, and arguments.
What’s more, all our mediation services was carried out confidentially and in private, unlike divorce litigation which has to be a matter of public record.
We help smart and successful separating couples create separation agreements with clarity and soft landings for secure futures in 4 meetings or less without all the lawyer created overwhelming conflicts, confusion and costs.
Have Any Questions?
Contact Information
Ken S, Maynard CDFA
1.855.731.3500
647.360.3200
I help smart and successful couples, create separation agreements with clarity and soft landings for secure futures, in 4 meetings or less without all the lawyer created overwhelming conflicts, confusion and costs. You can work with me by video conference or with a DTSW associate at any of our 6 DTSW Greater Toronto mediation centers, including | Aurora | Barrie | North York | Vaughan | Mississauga | Scarborough.
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