Recorded on November 22, 2012 - This webinar in the Family Law Education for Women (FLEW) series looks at a variety of ways to settle issues about children, property, and support, when a woman ends the relationship with her partner. What are the pros and cons of mediation, arbitration, and court, especially when there is or was abuse in the family? METRAC's Legal Director, Tamar Witelson, discusses the issues with Victoria Starr, a specialist in family law practice, and founder of Starr Family Law. Watch the webinar at: http://yourlegalrights.on.ca/webinar/Conflict-Court-or-Another-Way-Different-Ways-of-Resolving-a-Family-Dispute

1. Conflict, Court or Another Way?
Different Ways of Resolving a Family Dispute
November 22 2012November 22, 2012
Tamar Witelson, Legal Director, METRAC
Victoria Starr, Starr Family Law, Toronto
f il l
y
Funded by: Funded by:
www.onefamilylaw.ca
11/22/2012 1

2. This webinar is brought to you by
Your Legal Rights: a website of legal
information for people in Ontario.
www.yourlegalrights.on.ca

3. Please Note:
The content of this webinar is based on law or
policy that was current on the date the webinar
was recorded Your Legal Rights webinars containwas recorded. Your Legal Rights webinars contain
general legal information. They are not intended to
be used as legal advice for a specific legal problem. be used as ega ad ce o a spec c ega p ob e
For more information on how to find a lawyer or
to contact your local community legal clinic visit:
www.yourlegalrights.on.ca/find‐services

4. Presenters
Tamar Witelson
L l Di t METRAC
Victoria Starr
Family Lawyer/Mediator/ArbitratorLegal Director, METRAC Family Lawyer/Mediator/Arbitrator,
Starr Family Law, Toronto
Victoria Starr of Starr Family
Law has practiced exclusively
Tamar Witelson is the Legal
Director at METRAC Her Law has practiced exclusively
in family and child protection
law for more than 15
years. She represents clients
Director at METRAC. Her
background includes practice in
labour and human rights law, and
in Constitutional law for the
O t i Mi i t f th Att in court and in various
alternate dispute resolution
processes, with expertise in
domestic violence and sexual
Ontario Ministry of the Attorney
General. She was also counsel at
the Human Rights Tribunal of
Ontario, and before joining domestic violence and sexual
abuse. She is also a trained
mediator, arbitration and
collaborative family law lawyer.
, j g
METRAC was staff lawyer at the
Women’s Legal Education and
Action Fund (LEAF), running an
equality rights law and information
11/22/2012 4
equality rights law and information
website.

5. METRAC
METRAC, the Metropolitan Action Committee on Violence Against Women
and Children
 works to end violence against women, youth and children
t f fit it b d i ti a not-for-profit, community-based organization
www.metrac.org
METRAC’s Community Justice Programy g
 provides accessible legal information and education for women and
service providers
 focuses on law that affects women, from diverse backgrounds,
especially those experiencing violence or abusep y p g
FLEW, Family Law Education for Women in Ontario
 provides information on women’s rights and options under Ontario provides information on womens rights and options under Ontario
family law
 in 14 languages, accessible formats, online and in print
www.onefamilylaw.ca
h d d f llhttp://undroitdefamille.ca/
11/22/2012 5

6. Presenters
Tamar Witelson
l Di R C
Victoria Starr
Family Lawyer/Mediator/Arbitrator StarrLegal Director, METRAC Family Lawyer/Mediator/Arbitrator, Starr
Family Law, Toronto
11/22/2012 6

7. Topics to be Covered
1. What is Different about Alternate Dispute Resolution
(ADR)?
2 T f ADR2. Types of ADR
a. Negotiation
b. Mediation
c Arbitrationc. Arbitration
d. Parent Coordinators
e. Collaborative Law
3 ADR and Abuse3. ADR and Abuse
4. Screening for Domestic Violence
5. The“Need to Know”Basics
6 Additional Resources6. Additional Resources
Accurate as of the date of this webinar presentation: November 22, 2012
11/22/2012 7

8. Wh i Diff b ADR?What is Different about ADR?
11/22/2012 8

9. What is Different about ADR?
Alternate Dispute Resolution (ADR)
 A method to resolve a dispute other than
Court
 Used in many areas:
• Employment problemsp y p
• Business disagreements
• Contract disputes
• Family arrangements• Family arrangements
11/22/2012 9

10. What is Different about ADR?
Resolving a Family Dispute in Court
 One side initiates action; the other defends
 Often takes a long time
U ll b h l Usually best to have a lawyer
 Costly
 Formal Rules
 Judge’s understanding of family issues varies
 Little control over outcome
 Not confidential
 Outcome is a“Court Order”
1011/22/2012

11. What is Different about ADR?
Alternate Dispute Resolution vs. Court
 Voluntary
 Can be less formal
h h h d h d Parties choose the third party who assists and/or
decides
 Third party usually an expert in family issuesThird party usually an expert in family issues
 Usually moves more quickly than Court
 Sometimes possible without lawyersy
 Can be less costly
11/22/2012 11

12. What is Different about ADR?
Alternate Dispute Resolution vs. Court
 More control over processMore control over process
 Can be more private
 Results can be more tailored to the parties’concerns
 Most effective when both sides have comparable
bargaining power
11/22/2012 12

13. T f ADRTypes of ADR
11/22/2012 13

14. Types of ADR
1. Negotiation
 First step of every ADR process
 Very informal
 Discuss differences to work out solutions
 With or without a lawyer
 Can walk away at any time Can walk away at any time
 Successful outcome is a “Domestic Contract”
11/22/2012 14

15. Types of ADR
2. Mediation
 Negotiation with the assistance of a mediatorg
 With or without lawyers
 The mediator
• is chosen by the parties• is chosen by the parties
• is a neutral professional
• can make suggestions
• cannot give legal advice• cannot give legal advice
• cannot force a decision or solution
 Goal is to meet the interests of both parties as much as possible
C lk t ti Can walk away at any time
 Outcome is a “Memorandum of Understanding” (MOU)
 Can become a “Domestic Contract” if parties agree
11/22/2012 15

16. Types of ADR
2. Mediation
 Can be:
• Independent of Court• Independent of Court
• Before Court
• At Court
 Ontario government-funded mediation
• Free mediators at courthouses
• Available to everyone• Available to everyone
• Free Legal Aid mediators
• Available if at least one party eligible for Legal Aid
• At courthouses and Legal Aid Officesg
• Private government-subsidized mediators
• Up to 6 hours
• At courthouse or off-site
• Low cost, income-based
11/22/2012 16

17. Types of ADR
2. Mediation
 No mandatory family mediationNo mandatory family mediation
 Level of privacy:
a) Closed
 Confidential unless child safety issue arises
 Discussions cannot be raised in CourtDiscussions cannot be raised in Court
b) Open
 Not confidentialNot confidential
 Discussions can be raised in Court
11/22/2012 17

18. Types of ADR
2. Mediation
 Ask questions about the process
St t ith M di ti A t Starts with a Mediation Agreement
 Consider written rules for mediation if a power
imbalance between partiesimbalance between parties
 Consider talking to a lawyer
 Before starting
 Before signing a Domestic Contract
11/22/2012 18

19. Types of ADR
Every Domestic Contracty
 To be valid and enforceable:
• Must be signed by both partiesg y p
• Must be dated
• Must be witnessed by another person
• Each party gets independent advice from a
lawyer
• Each party makes full financial disclosure for• Each party makes full financial disclosure for
money matters
11/22/2012 19

20. Types of ADR
3. Arbitration
 Parties choose the arbitrator
 Voluntary until agreement to arbitrate is signed
 Once arbitration begins, can’t walk away
 Arbitrator makes a binding decision
 Arbitrators must apply Ontario and/or Canadian
law
 Outcome is an “Arbitration Award”
11/22/2012 20

21. Types of ADR
3. Arbitration
 Formal process, but can be more flexible than Court
 Parties must get legal advice about arbitrationParties must get legal advice about arbitration
 Parties may have legal representation during arbitration
 Parties must be screened for power imbalance and domestic
violence before arbitration
 Arbitration decisions dealing with a child must be decided
according to the best interests of the child
11/22/2012 21

22. Types of ADR
3. Arbitration
 Arbitration process and decisions can be challenged Arbitration process and decisions can be challenged
in Court if, for example:
• the law was misapplied
• the facts are incorrect or misunderstood
• one party did not really consent
• the terms are unconscionablethe terms are unconscionable
• the arbitrator was biased
 Arbitration agreements can restrict the right to Arbitration agreements can restrict the right to
challenge a decision, but not for mistakes in law
11/22/2012 22

23. Types of ADR
3. Arbitration
 Faith-based arbitration
• Assistance from a religious official to resolve a familyg y
dispute
• Voluntary
• Decisions based on religious principles that do not follow
Canadian law are not legally valid or enforceable in Court
11/22/2012 23

24. Types of ADR
4. Parent Coordinators
 Voluntary until a Parent Coordinator Agreement is signed
F ft ti l i i l For after a parenting plan is in place
 Useful for parents who can’t get along
 Coordinator is trained in:
• Child and family issues
• High conflict family situations
• Conflict resolutionConflict resolution
• Family law
 Coordinator acts to:
C h ti kill• Coach parenting skills
• Enforce parenting plan
• Arbitrate disputes with some legal decision-making power
11/22/2012 24

25. Types of ADR
4. Parent Coordinators
 Parents must participate in parent coordination for the full
term of the agreement, unless both parents agree to stop
 Rules for Arbitration apply Rules for Arbitration apply
 Outcome is an “Arbitration Award”
11/22/2012 25

26. Types of ADR
5. Collaborative Law
 Formalized negotiation process
 Both parties are represented by lawyers
 Lawyers are “communication coaches” and legal
d iadvisors
 A 4-way “problem solving team”
 Based on cooperation Based on cooperation
 Parties agree not to go to Court while negotiating a
settlement
 Lawyers cannot also represent the parties in Court
 Can be costly
11/22/2012 26

27. Presenters
Tamar Witelson
l Di R C
Victoria Starr
Family Lawyer/Mediator/Arbitrator StarrLegal Director, METRAC Family Lawyer/Mediator/Arbitrator, Starr
Family Law, Toronto
11/22/2012 27

28. ADR d AbADR and Abuse
11/22/2012 28

29. ADR and Abuse
 Abuse in a partner relationship can be:
Ph i l• Physical
• Sexual
• Verbal
• Psychological
• Emotional
• Financial
• Spiritual
 Abuse can be bullying, or any behaviour that
demeans, or removes a person’s confidence or
ability to act as she choosesability to act as she chooses
11/22/2012 29

30. ADR and Abuse
 Most types of ADR are not appropriate if there is or has
been abuse in a relationshipbeen abuse in a relationship
 Victims may be embarrassed or afraid to admit the abuse
 Abusers may be unaware of or unwilling to acknowledge the
abuse
 Abuse creates an imbalance in power
 Victims may feel forced into agreementy g
 If abuse is not recognized, an ADR process may add to the
abuse and result in unfairness
11/22/2012 30

31. S i f D iScreening for Domestic
Violence
11/22/2012 31

32. Screening for Domestic Violenceg
 Women in abusive, coercive or controlling relationships are
at an increased risk of violence at the time of separation
 Screening “tools” can help predict if a woman or child is atScreening tools can help predict if a woman or child is at
risk of harm post-separation
I O i A bi d P C di i d In Ontario, Arbitrators and Parent Coordinators are required
to screen for domestic violence
 Screening for domestic violence is a common best practice
in mediation
11/22/2012 32

33. Screening for Domestic Violence
The screening process:
 Screeners are trained and certified
 Often done by the same person for both parties
 Is usually confidential
 Looks for signs of a person’s vulnerabilitiesLooks for signs of a person s vulnerabilities
 Considers:
• Mental or physical illness
• Drug or alcohol dependency• Drug or alcohol dependency
• Intense anger or blame
• Confrontational behaviour
• History of domestic violence• History of domestic violence
 May conclude how to fairly balance a mediation or arbitration
 May conclude that a mediation or arbitration should not
proceed
11/22/2012 33

34. Th “N d K ”B iThe“Need to Know”Basics
11/22/2012 34

35. The“Need to Know”Basics
1. How do I find an ADR specialist?
• Ask around – your friends, therapist, counsellor,
lawyer, community agencies
• Check referral services and professional
organizations
11/22/2012 35

36. The“Need to Know”Basics
2. How do I choose an ADR specialist?
M di t t l t d Mediators are not regulated
 Look for accreditation
Ontario Association for Family MediationOntario Association for Family Mediation
www.oafm.on.ca
 Ask for a preliminary meeting to decide if the
person is right for you
A bit t l t d b t kill d Arbitrators are regulated but skills and
experience vary
 Lawyers can help you choose Lawyers can help you choose
11/22/2012 36

37. The“Need to Know”Basics
2. How do I choose an ADR specialist?
Things to look for:
• Consider if you have unique concerns about culture or
li i di bilitreligion or a disability
• Consider if there was or is abuse with your partner
• Ask if the ADR specialist has any familiarity and
experience with these issues
• Look for biases
11/22/2012 37

38. The“Need to Know”Basics
3. How do I prepare for ADR?
 think about the things that you and your partner can’t agree on
 think about the solution you want from ADR
 Talk to a lawyer or research about your legal rights Talk to a lawyer or research about your legal rights
 Research about the kind of ADR you choose
 Bring information with you about your finances and the things
you want to ask for
 prepare questions for the ADR specialist to be sure you
understand the process
11/22/2012 38

39. The“Need to Know”Basics
4. Do I need a lawyer for ADR?
 Negotiation can work well without a lawyer
 Other ADR types, such as mediation and arbitration,Other ADR types, such as mediation and arbitration,
are most successful with a lawyer
 Arbitration requires initial legal advice to ensure you Arbitration requires initial legal advice to ensure you
understand the process
C ll b ti f il l i l i th Collaborative family law requires lawyers in the
process
11/22/2012 39

40. The“Need to Know”Basics
5. How do I pay for ADR?
 Parties usually share the cost equallyy q y
 Arbitrators/Parent Coordinators can “re-align”
more costs to one party in an awardmore costs to one party in an award
 Free and subsidized mediation services are
available at courthouses
 Free Legal Aid mediation if one party is eligibleFree Legal Aid mediation if one party is eligible
 You can ask an ADR specialist to reduce fees
11/22/2012 40

41. Presenters
Tamar Witelson
l Di R C
Victoria Starr
Family Lawyer/Mediator/Arbitrator StarrLegal Director, METRAC Family Lawyer/Mediator/Arbitrator, Starr
Family Law, Toronto
11/22/2012 41

42. Addi i l RAdditional Resources
11/22/2012 42

43. Additional Resources (ADR)
Finding a Mediator, Arbitrator, or other ADR Professional
• Ontario Association for Family Mediation
htt // f /http://www.oafm.on.ca/
• Family Mediation Canada
http://www.fmc.ca/
• ADR Institute of Ontario
http://www.adrontario.ca/findapro.cfm
• Ontario Collaborative Law Foundation
http://www.oclf.ca/
• Collaborative Practice Toronto
htt // ll b ti ti t t /http://www.collaborativepracticetoronto.com/
Ontario Ministry of the Attorney General - Family Arbitration
• http://www attorneygeneral jus gov on ca/english/family/arbitration/default asphttp://www.attorneygeneral.jus.gov.on.ca/english/family/arbitration/default.asp
11/22/2012 43

44. Additional Resources (Family)
Assaulted Women’s Helpline
www.awhl.org
• Toll-free: 1-866-863-0511; TTY: 1-866-863-7868
• Toronto: 416-863-0511
Legal Aid Ontario
http://www.legalaid.on.ca/en/getting/default.asp
• Toll-free: 1-800-668-8258; TTY: 1-866-641-8867
• Toronto: 416-979-1446 (accepts collect calls)
Family Law Information Centres (FLICs)
http://www.legalaid.on.ca/en/getting/type_family.asp
Family Law Services Centres (FLSCs)Family Law Services Centres (FLSCs)
http://www.legalaid.on.ca/en/contact/contact.asp?type=flsc
Family Law Education for Women (FLEW)
http://www.onefamilylaw.ca/en/resources/
Femmes Ontariennes et Droit de la Familles (FODF)
http://undroitdefamille.ca/
Ontario Women’s Justice Network (OWJN)Ontario Womens Justice Network (OWJN)
www.owjn.org
4422/11/2012

45. Additional Resources (Legal)
Law Society of Upper Canada Lawyer Referral Service
http://www.lsuc.on.ca/with.aspx?id=697
ll f• Toll-free: 1-800-268-8326
• Toronto: 416-947-3330
• TTY: 416-644-4886
JusticeNet
http://www.justicenet.ca/directory/search/
• Reduced fee lawyers for low income people not eligible for Legal Aid
i d i l l li iFind a community legal clinic near you
http://www.legalaid.on.ca/en/contact/contact.asp?type=cl
T lkit f d Cli t L R l ti hiToolkit for a good Client-Lawyer Relationship
http://schliferclinic.com/vars/legal/pblo/toolkit.htm
• Barbra Schlifer Commemorative Clinic
4522/11/2012

46. Additional Resources (General)
Ministry of the Attorney GeneralMinistry of the Attorney General
http://www.attorneygeneral.jus.gov.on.ca/english/
• Toll free: 1-800-518-7901
• TTY: 1-877-425-0575
211 Canada.ca
http://211canada.ca/
• Multi-lingual information about community and government servicesMulti lingual information about community and government services
CLEO’s Your Legal Rights
http://yourlegalrights.on.ca
• Legal information resources, services map, news & events and training webinars
4622/11/2012

47. Additional Resources (General)
Online forms
http://www.ontariocourtforms.on.ca/english/family/
Ontario Court Forms Assistant
https://formsassistant.ontariocourtforms.on.ca/Welcome.aspx?lang=en
• Get help online to complete family court forms
Ontario Courts
http://www.ontariocourts.on.ca/
• Online guide provides an overview of all courts in OntarioOnline guide provides an overview of all courts in Ontario
• Information on family courts:
– Superior Court of Justice http://www.ontariocourts.ca/scj/en/famct/
– Ontario Court of Justice http://www.ontariocourts.ca/ocj/family-court/overview/
Ontario Court Locations
http://www.attorneygeneral.jus.gov.on.ca/english/courts/Court_Addresses/
• Find court addresses across Ontario• Find court addresses across Ontario
22/11/2012 47

48. Additional Resources (Victim Assistance)
Victim Crisis Assistance and Referral Services (VCARS)
• Immediate, on-site service to victims of crime 24 hours a day, 7 days a week
• Toll free: 1 888 579 2888• Toll-free: 1-888-579-2888
• Toronto: 416-314-2447
Victim Support Line (VSL)
• province-wide, multilingual, toll-free information line providing a range of
services to victims of crime
• Services available from 8 a.m. to 10 p.m., 7 days a week in 13 languages
• Toll-free: 1-888-579-2888
• Toronto: 416-314-2447
Court Prep
www.courtprep.cap p
• provides information on the Canadian legal system and prepares victims and
witnesses to give evidence
4822/11/2012

49. This webinar was brought to you by
Your Legal Rights: A website of legal information
for people in Ontario
For more information visit Your Legal Rights at
www yourlegalrights on cawww.yourlegalrights.on.ca
For more public legal information webinars visit:p g
www.yourlegalrights.on.ca/training