Comprehensive Divorce Mediation

A Bridge Over Troubled Waters

Originally published in the newsletter of the Ontario Association for Family Mediation, Fall 1988

In Comprehensive Divorce Mediation, one professionally trained mediator guides a divorcing family (including the children) through the emotions, the child-related decisions, and the financial decisions of separation and divorce. The mediator also takes on the role of “Mediator-Broker” by providing access to an actuary, a certified business valuator, a psychiatrist, or other resources as needed. The clients are strongly advised to seek independent legal advice before signing the Separation Agreement.

 

Lawyers are trained to deal with the written law with respect to children and with financial rules as they apply to one party in the adversarial process. Mental health professionals are trained to deal with the emotions and behaviours of the family process and, in a limited way, with some of the child-related decisions. Obviously many families needlessly fall through the chasm between these two professions when they are in the divorcing process. Particularly neglected is the relationship between emotions and finances.

Some of the experts on mediation are quite clear than Comprehensive Divorce Mediation for families is far superior to restricted mediation. As one of the few full-time Comprehensive Divorce Mediators in Canada, I have concerns that Comprehensive Divorce Mediation is being squeezed out of the marketplace by several interrelated yet uncoordinated forces.

 

The following is a partial list of these factors:

 

  1. The Divorce Act, 1986, leaves it to lawyers to inform clients about mediation.
  2. Lawyers often tell clients to stay away from Comprehensive Divorce Mediation. (This approach is in direct contravention to the intent of Section 3 of the Ontario Family Law Act which encourages mediation in all aspects.)
  3. One network of practitioners in Ottawa is ironically “winning the battle, but losing the war” with regard to the development of mediation in this region. The mental health professional deals with child-related issues and then sends the family off to three lawyers, one of whom acts as a financial mediator while the other two act as advocates for the two individuals.

 

The above-mentioned system of divorce mediation was a good first step, but it is now inhibiting the evolution and development of divorce mediation because of its inherent limitations:

 

  1. The financial mediator (usually a lawyer) rarely has enough experience, training or skill with regard to dealing with couples and their emotions.
  2. It requires a long-term, compatible relationship between the two mediators.
  3. It requires continuous contact between the two mediators.
  4. It costs more than is necessary because of there being two mediators instead of one.
  5. Lack of mandatory education about mediation prior to filing for divorce. e. Lack of mandatory entry into divorce mediation.
  6. Lack of mandatory mediation regarding access and/or support violations before submission to an enforcement process.
  7. Because the Ministry of Justice has concluded in its research that mediation is not significantly better than litigation within court-based systems, government energy and funds may become increasingly limited with respect to divorce mediation efforts. Mediation would be limited in a court-based system; it is by definition best practiced in non-adversarial, private settings. (Mediation does not work well with time slots and deadlines. A full Comprehensive Divorce Mediation program would not be possible in the complex bureaucracy of a hectic courthouse.)
  8. Lack of “Mediation Aid” (not to be confused with Legal Aid for mediation).

Just imagine if a cash-poor separating couple could go to a Mediation Aid office and as a couple request aid, or if a couple could go to a mediator and ask him/her to mediate their case after obtaining the Mediation Aid Certificate.

Unnecessary discord is being created in the community amongst cash-poor, separating families who must use the adversarial Legal Aid system which bars them from mediation generally and from Comprehensive Divorce Mediation in particular.

 

As much as it is profoundly valuable for a couple to achieve a creative, surprise breakthrough during Comprehensive Divorce Mediation (with living arrangements, pensions, forms of custody, support, and professional business valuations all on the table), it is also saddening to realize that there are thousands of other couples needlessly missing that opportunity due to the road blocks to Comprehensive Divorce Mediation.

To summarize then, these are the advantages of the comprehensive model of divorce mediation:

 

  1. Lower costs to the clients. These costs include monetary, time, level of acrimony, emotional energy, total number of professionals involved at any one time, etc.
  2. The model can be spread easily across the country. There are now several training programs for comprehensive mediator-brokers, which will enable many more individuals to be able to deal effectively with all the aspects of separation and divorce.
  3. It does no depend on a compatible relationship between a family mediator and a financial mediator.
  4. It does not require high frequency contact between two mediators with regard to the child and financial matters.
  5. All issues are weighed in a comprehensive manner such that the form of custody may be interrelated with mutual budgetary constraints or options. Finances can be discussed before the form of custody or vice-versa, whichever is deemed advisable.
  6. Surprise breakthroughs or creative solutions are much more likely when all issues are considered together.
  7. The model avoids unnecessary mediation failures attributable to the artificial separation of family issues.
  8. It addresses the crucial impact of the relationship between couple’s emotions and their financial situations. If a separate financial mediator is used, this advantage is generally lost.
  9. The familiarity and success patterns gained through the child-related portion of the mediation can be readily transferred to the financial portion when the mediator of both portions is the same person. Also information does not have to be introduced to and digested by a second mediator.
  10. The model can be more readily utilized by cash-poor families (with or without Mediation Aid) because of its simplicity and its significantly reduced dependence on costly litigation systems.