Michael Ford (post until Oct. 31/19)
Family, Mediation

Dispelling mediation myths

A growing number of separating couples are opting to mediate the issues flowing from their marriage and separation without having counsel attend with them, says Toronto family lawyer Herschel Fogelman.

One group with an interest in this kind of mediation are people over 50 who no longer have parenting responsibilities and simply want to resolve their financial issues, says Fogelman, founder and principal of Fogelman Law.

“They’ve seen friends or family members go through hundreds of thousands of dollars in litigation and they’re looking for a better way.”

Regardless of whether they attend with or without counsel, it’s important for anyone going into mediation to be disabused of some common myths, Fogelman tells AdvocateDaily.com.

Here are Fogelman’s top five misconceptions about mediation:

1. “The biggest myth is that mediation begs a conclusion — that there’s a predictable or linear outcome,” Fogelman says. “Mediation is a process, not an outcome.”

That doesn’t mean it has to be a long process. After practising family law for almost 30 years and mediation for 15, he can conclude most mediations within a day — “an eight- to 10-hour work day” — as long as the parties are prepared.

2. There’s an idea that coming to mediation means divesting responsibility for a resolution onto the mediator.

“It’s as if the couple is saying 'we’ve been at this for X number of years and can’t figure it out so you do it,' and the mediator is supposed to tell them what to do.”

Fogelman says he might be happy to work under that model but he doubts any clients actually would be.

“That’s not what they want, they just think they do. What they really want is to have their positions heard, an opportunity to articulate their concerns, and for someone to give those concerns deference and weight,” he says.

3. People think if there’s not much money involved it will be easier to resolve their case.

“Some of the most difficult mediations I’ve done have been cases where there’s very little money. It’s very hard to solve problems where there’s no money. You can’t put $10,000 on the table to make a problem go away. Every dollar counts.”

4. Many clients misunderstand the concepts of open and closed mediation. In open mediation, there’s a report from the mediator that goes to the family court. In closed mediation, there is no report — just a statement that the parties met with the mediator and did not reach an agreement.

Counsel believe that open mediation is the better option because the mediator will tell the court that one party (the other side no doubt) is being unreasonable, Fogelman says.

“The misconception is that you’d actually get a mediator to say the husband’s bad, or that the wife isn’t willing to negotiate.”

Sometimes people ask for open mediation not to try to make a deal but to affect a future event such as a court hearing, he says.

“They’re coming in order to portray the other side as unreasonable, so they can then say to a judge, ‘see, I told you she was crazy.’ No mediator having any quality is going to do that. You're not going to let yourself be played that way.”

5. Finally, Fogelman would like to dispel the misconception that being a mediator is easy work.

“People think it’s not hard, but it’s a challenging role, it’s quite tiring. The hardest part is that all the dialogue of the day goes through the mediator. Everyone is listening to everything the mediator says.

"You have to be very careful what you say to whom, when, and how you frame things. You can say the wrong thing without even knowing it.”

Fogelman recalls one mediation he attended years ago as counsel for one of the parties. The mediator, attempting a little ice-breaking chitchat, commented to the wife that she looked younger than her age. She took offence, and the mediation went nowhere.

“If your name is Susan and I call you Susie, that’s the whole day done,” says Fogelman. “They’ll say he’s not paying attention.”

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