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Family, Mediation

Family mediation gaining traction as ‘preferred alternative’ to court

Mediation is growing in popularity as more families seek to resolve disputes outside the courtroom, says Toronto family lawyer, mediator and arbitrator, Herschel Fogelman.

It's a promising trend since typical courtroom litigation can make a difficult conflict even worse, Fogelman, founder and principal of Fogelman Law, tells

“Mediation isn’t better in all circumstances, but it’s a preferred alternative in many,” he says.

“It has become more accepted by lawyers and judges, and there is a greater impetus to engage in the process because we’ve had a very good history of skilled mediators working through difficult family problems.”

In mediation, neutral third parties (known as mediators) help couples come to agreements or compromises on a variety of issues, including support payments, division of property, and custody, according to the Ontario Ministry of the Attorney General.

Parties have their own lawyers in the majority of mediations, so the process generally begins with a plenary phone call(s) between the lawyers and the mediator to exchange information and material, and set some dates, Fogelman explains. Once the mediator reviews the materials, the parties and their lawyers meet in the mediator’s office and, typically, the lawyers and mediator will meet to discuss priorities, issues, and how best to address the issues, he adds.

“What happens after that, in the actual mediation, isn’t scripted,” Fogelman says.

Every mediation is different, he says, but the goal is always to arrive at a settlement that’s agreeable to both parties.

The process can be easier on families going through a separation, allowing couples to preserve some semblance of a relationship, which many people desire if they have children together, Fogelman points out.

“It’s also less expensive than litigation, and allows a couple to tailor a resolution that works for their family,” he says.

An arbitrator, by comparison, is confined by statute, Fogelman says.

“The opportunity for creative dispute resolution goes away when you’re in a litigation environment,” he says.

Fogelman completed his mediation training in 2004 and decided to focus his efforts thereafter assessing his skills and realizing what a good fit it was for him.

“A mediator needs to have a broad skill set,” he says. “They still need all the skills of any lawyer, such as the ability to think critically, but they also require the aptitude to connect with people, develop rapport, create an environment of trust, and to be a critical listener.”

It also helps to have some knowledge of the subject matter, he adds.

Fogelman launched his firm last September after two decades with a prestigious Toronto firm. He focuses on alternative dispute resolution, but is also a highly experienced litigator when the situation calls for it.

Some situations will still require litigation, Fogelman says.

“Certain cases are binary, with only two possible outcomes and no middle ground, such as parents who are separating and one of them wants to move out of the jurisdiction to a new location with a child. In cases like that, it is extremely difficult to craft a creative resolution, more often than not, the parties simply need a decision," he says.

“You either get to go, or you don’t,” Fogelman adds.

Some people are also just unwilling to settle and want their day in court, he says.

“They want to be proven correct and are unwilling to compromise,” Fogelman says.

But just because a case doesn’t seem suitable for mediation doesn’t mean that the right mediator can’t make it work, he says, adding that he’s successfully mediated some difficult, even binary, conflicts.

“You have to be dogged,” Fogelman says.

“When it seems like a case isn’t going to settle, you have to keep working at it, finding different angles and considering different options until you reach a solution.”

To Read More Herschel Fogelman Posts Click Here
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