Mediator vs Lawyer: Making Divorce Smoother and Cost-Effective

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.

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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.

Of course, she had just handed me a Divorce Application. I stood where I was with the door still open, freaked out by what had happened to me. I had no idea what to do and wasn’t liking the shooting pains I was getting in my chest. Was I having a heart attack? No, it was too low for that, it was in my gut now, like a massive weight bearing down on me as if someone was sitting on my neck.

The pressure got so intense, that I couldn’t lift my head. The palms of my hands were clammy, my whole body shaking and shivering despite this being August. It was a fear the like of which I’d never experienced before. The fear that this Divorce Application I was holding spelled the end of any chance of myself and my wife coming to an amicable separation agreement.

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.

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.