The Fishman Beley Family Law Primer - Family Law 101

Settlement / Mediation / Arbitration

GENERALLY

For most of our clients, their family law case is their first taste of the law and courts. It can be an intimidating prospect and experience. Our job is to assure you, as best we can, of the potential outcomes and to advise you of your rights.

To be realistic, most family law cases are resolved short of a trial. The achievement of settlement can happen at any step along the way. The lawyers of Fishman Beley, Family Law Associates want to help you settle your case, but we have the experience to go to court when appropriate or necessary.

Terry Beley has been practicing since 1976, 47 years, and Len Fishman has been practising family law since 1975, 48 years. Noah Fishman articled with us and has practiced family law for 10 years , since being called to the Bar in 2013.

We understand family law and have participated actively in its changes over the last 4 decades. Len Fishman and Terry Beley have been actively involved in legislative changes, education of our peers and the public, and committee work. We have argued contested cases and appeals that have been reported, that have helped to move the law along. Experience has taught us many things, and we try to bring them to the table.

There are many different ways to settle a family law case, often called “alternative dispute resolution” or "ADR", such as through negotiation, mediation, case conferencing, and “without prejudice” correspondence or meetings. These are tools which can be used alone or in combination.

We will seek to ensure you work with full information and practical guidance in dealing with the core issues of custody, support or property and incidental and related issues. Our mission is to provide sound advice on a practical and ethical basis.

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RECONCILIATION

Reconciliation is sometimes the answer and it is the court and every lawyer’s duty to explore the possibility, unless it is clearly out of the question.

The law provides for periods of attempted reconciliation and protects discussions with professionals by making them inadmissible in court proceedings.

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NEGOTIATION

Almost everything in a family law case is or should be negotiable, and it is usually in the parties’ individual and collective interests to settle as many issues as possible. A negotiated result is one that the parties make and own. Typically, the cost is significantly less and the result is one that suits the parties and their children, rather than a result that can seem arbitrary and disconnected when imposed by a judge or arbitrator.

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WITHOUT PREJUDICE

Negotiations are usually undertaken in a “without prejudice” context.

Lawyer’s letters will often be marked “without prejudice” and most 4-way meetings with counsel and the parties will proceed on the basis that the discussions are “without prejudice.” What this means is that nothing said or written on a “without prejudice” basis can be used in subsequent court proceedings (except in a rare case where there is a dispute as to whether or not an agreement was reached). This allows the parties to speak freely without being bound by their offers or suggestions in the negotiation process.

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A LEVEL PLAYING FIELD

We believe that negotiations must take place in the context of complete and candid financial disclosure and in a climate of mutual respect. Unless the playing field is level, that is, the parties are on an equal footing from an emotional and informational point of view, a proper and fair deal cannot be made. There must be an absence of fear or intimidation.

We see ourselves as collaborative in our approach to innovative and practical problem-solving solutions, but we do not belong to the Collaborative Group, because if and when negotiations break down in that process, each of the parties is required to hire new lawyers. While their contract gives the lawyers and parties an incentive to work things out, we believe that the shotgun approach can be unfair to the clients and is sometimes used by one of the parties tactically.

Again, while courts are seen as a last resort, our experience in them can inform and work well as the background to resolution.

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MEDIATION

Mediation is a dispute resolution mechanism usually involving both parties meeting separately or together with an independent person trained in mediation. If the mediation is successful, it will lead to an agreement, which the parties can then ratify with the assistance of their lawyers.

The process is usually on a "without prejudice" basis; that is, it is a form of negotiation that cannot be referred to in subsequent proceedings, so that each of the parties is free to explore different possibilities without being held to their positions. The mediator must be independent and the parties must be free to negotiate for it to be successful.

Parties to mediation should have independent legal advice before, during, and after mediation to ensure they understand the issues and are not unduly pressured. Where there has been a history of physical or mental abuse between the parties, mediation is not recommended.

Mediation is highly recommended in custody and access cases. While custody and access are the areas most commonly mediated, some private mediators will also perform comprehensive mediation incorporating financial issues such as support and property issues.

While typically the parties must agree to mediation, the court does have the power to refer parties to mediation. Nothing, however, can require the parties to be actively involved or to be genuinely committed to the process.

COMPREHENSIVE MEDIATION SERVICES

Among the resources available is the Comprehensive Mediation Services, offered by the Family Resolution Service of the court, which uses a lawyer trained in mediation and a social worker who work together as co-mediators. The service is open to families with children undergoing dissolution. Referrals may come from the courts, lawyers, other agencies or the parties themselves.

Prospective participants will be required to attend the "For the Sake of the Children" parent information program. There will be an initial screening for suitability and an explanation of the process. The parties can include their lawyers in the process. There is no direct cost of the mediation to the participants, but they will be responsible for related costs such as appraisals or other consultations such as with their lawyers. Participants are expected to provide feedback and evaluation of the program.

Sessions will be co-mediated and it is expected there will be 3 to a maximum of 6 sessions leading to a written Memorandum of Agreement reflecting agreed issues which are then forwarded to the parties' respective lawyers. The parties are advised that the draft agreement is not binding on them and they are encouraged to obtain independent legal advice.

While the co-mediators will provide legal information, they will not provide legal advice.

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ARBITRATION

Arbitration is an alternative dispute resolution tool that is gaining in popularity. Essentially, the process, when governed by The Arbitration Act of Manitoba, will lead to a binding result between the parties that can be enforced as a judgment of the court. While custody issues can now be arbitrated, the courts of Manitoba retain the jurisdiction to override those determinations in an appropriate case.

The Arbitration Act was amended in 2019 to include provision for the arbitration of family law disputes that could be dealt with in a written agreement conducted exclusively in accordance with the law of Manitoba or another Canadian jurisdiction, including parenting arrangements, child and spousal or common-law partner support, and property issues under The Family Property Act or The Law of Property Act.

If the parties agree to arbitration, they can negotiate the terms of their arbitration, what will be arbitrated, what the process will be, pick their arbitrator, and determine how the arbitrator will be paid. Often, the parties will agree to a process that will start with mediation, which, if it breaks down, will then become an arbitration.

The agreement to arbitrate must be signed by each party with a certificate of independent legal advice and the arbiter must be satisfied that the arbitration will not expose the party or child to a risk of domestic violence or stalking.

Arbitrators must be qualified as set out in the regulations, namely family law lawyers with at least 10 years experience in the area.

Terry Beley and Len Fishman both are experienced in arbitration work. Typically, their appointment will be by the agreed choice of the parties’ lawyers, but can also come directly from the parties. Representation by counsel at an arbitration is recommended, but not required.

The court may set aside an arbitral agreement where it finds that “a party took improper advantage of the other party’s vulnerability, ignorance, need or distress”, where a party did not understand the nature and consequences of the agreement or there were circumstances that would otherwise at common law render the contract voidable. The arbitral award must comply with the statute law of the province. The arbitral award is registrable with the court and enforceable as a court order.

While there might be the additional cost of paying the arbitrator to consider, arbitration can offer a private, faster, tailored and ultimately less expensive result than the court process. One of its important features is that the process can be entirely private, whereas litigation files in the court are open to the public.

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MEDIATION/ARBITRATION – THE MED-ARB SOLUTION

The lawyers of Fishman Beley Family Law Associates are available as mediators and as arbitrators. We think that the best approach is to use a Mediation-Arbitration (Med-Arb) model which is a hybrid of the two processes.

Many arbitrators prefer to separate the mediation and arbitration stages and do not apply to the arbitration stage what might have been said or even agreed upon at mediation without the express consent of the parties.

Prior to the commencement of the mediation or arbitration process, there must be screening for domestic violence.

After a set number of mediation sessions, or by agreement of the parties or determination of the mediator that mediation has not and will not likely be successful, the matter then moves directly to the Arbitration stage.

Some of the advantages of this approach:

The knowledge that a decision will be made if the parties are unable to agree, can inspire the parties to work extra hard in mediation to come to an agreement.
The matters agreed in mediation would not be lost on the basis that the whole mediation wasn’t successful.
Evidence and arguments put forward during the mediation stage don’t need to be repeated, provided the parties have agreed on this process.
A second person does not need to be brought up to speed. This is also a likely cost saving having one person complete the whole process.
The person who has not been getting their way in the mediation won’t be able to quit the process and walk away without a resolution.
The process is finite and will be concluded in a timely way.

There are, of course, potential downsides to the med-arb process, some being:

A party knowing the mediator may ultimately decide the issue(s) might feel inhibited sharing confidential information which might be against the party’s interest which might be used later.
A party might withhold making their best offers for fear those will be a starting point in the arbitration portion.

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