ADR, Family, Mediation

Mediation is affordable, timely alternative in family law

By Robert Lamberti, AdvocateDaily.com Contributor

Mediation is one of the best ways to provide access to justice in an affordable and timely way — especially in family law cases, says Toronto arbitrator and mediator Victoria Romero.

A recent report suggests mediation costs about half the amount of litigation, ensuring scarce financial resources are saved, Romero, principal of the mediation and law firm VR Law, tells AdvocateDaily.com.

She points to a discussion by former Chief Justice of Ontario Warren Winkler who said, “mediation affords many parties an opportunity to access the civil justice system quickly and at relatively low cost.”

Romero says Winkler’s observation outlines a reason she became a mediator, noting, “I didn’t find that any other venue was as good for amicably resolving issues.”

For many people, turning to mediation is a necessity because they can’t afford the cost of going to court, she says, adding that the middle class is at the most risk of being unable to afford legal services, by not being rich enough to afford counsel and not poor enough to qualify for legal aid.

"It is also concerning that people are choosing to represent themselves in family law cases," says Romero.

People who self-represent are dealing with complicated and important issues like the division of property, child custody, and financial support, she says.

“The presentation you provide to court has to be competent enough, knowledgeable enough to represent your position adequately,” Romero says. “These are not little things. It will affect your life and your family.”

Mediation is mandatory in civil litigation cases in Windsor, Ottawa and Toronto, and an option elsewhere in the province, but is voluntary in family law.

"This is very important to preserve, as a family mediator must always be screening for any possible domestic violence issue," she says.

“It makes sense in family law because with mediation you can craft a solution that goes outside the remedies that a judge can give you,” Romero says. “You save time and money from a limited pie of resources for people who don’t have endless amounts of money to spend.

“It also addresses the issue of access to justice,” she says.

A family separation often creates two households, and strains the financial resources of the parties, especially if there are children, Romero says. “Everyone talks about the high price of divorce, where the parties often end up with fewer resources.

“If you add the legal costs of hiring a lawyer to protect you and represent you before the courts, the financial situation worsens,” she says.

“And it’s not good for the family because there is potentially less money available for the children,” Romero says. “Mediation, in that sense, helps in terms of access to justice.

“It offers an opportunity for both parties to come together, preferably with lawyers, and provides a framework, a system, in which two parties can air out their issues and try to come up with a solution in a more money-sensible and time-sensible way,” she says.

“People sometimes can’t afford lawyers, but at least in mediation, they can deal with their situation” better by themselves than in a courtroom, Romero says.

Winkler agrees, noting the courts and the legal system must adapt to the needs of society.

“If litigants of modest means cannot afford to seek their remedies in the traditional court system, they will be forced to find other means to obtain relief,” Winkler argued. “Some may simply give up out of frustration. Should this come to pass, the civil justice system as we know it will become irrelevant for the majority of the population.

"A legal system accessible only to the very poor and the very well-to-do presages its own demise.”

Romero says mediation may not be the best solution or the only option for everyone. “But in the absence of anything else, I think we should continue to move towards mediation.

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