Ottawa Citizen
Tuesday 6 February 2001

Hang a left at divorce court

Dave Brown
The Ottawa Citizen

Hurt and angry people heading for divorce court would be wise, when entering the Elgin Street courthouse, to hang a left at the main floor elevators.

Down the corridor one will find a door marked Family Law Information Centre.

There they'll find what they need to avoid having the assets of their marriage divided in litigation that will see a large part of those assets diverted to legal costs. Divorce is devastating, and shouldn't have financial tragedy heaped on it.

The legal community knows that. That's why the centre is funded by the Ministry of the Attorney General.

It opened Nov. 15, 1999, and has become an operation with 12 available mediators covering Ottawa, Cornwall and Brockville.

It charges a user fee geared to income. The contract to run the centre was won by Unified Family Court Mediation Professionals, an agency headed by Ken Swinburne.

Couples using the centre can be referred to other mediation operations like the Family and Divorce Mediation Centre on Gladstone Avenue, or the ADR Centre (alternative dispute resolution) on Bank Street. In any of these the emphasis will be on avoiding costly litigation.

Family court is not included in the long list of courts that make mediation mandatory. Children are stakeholders in a family split and it's money needed by them that will be lost to legal fees.

In 1991, Justice Minister Anne McLellan went on record to say she was opposed to mandatory family mediation because it helped men dominate women. She was then a professor at the University of Alberta and wrote a paper for the Alberta Council on Women's Issues entitled Women and the Process of Constitutional Reform.

"Some legislatures may choose to impose a presumption of joint custody and mandatory mediation in the resolution of family disputes .... An increasing number of commentators now suggest that joint custody may simply perpetuate the influence and domination of men over the lives of women."

The ADR Centre recently established a program it calls FIT (families in transition). The plan is to have soon-to-be-single couples sit down with a mediator, a financial expert, and one lawyer.

Ask questions. Find out what it will cost to have two lawyers presenting different claims through a lengthy court process in which a judge will have the final word.

Get an idea of the parameters within which current judgments are handed down, and how much it will cost to get there.

Lawyer John Webster recently took part in a FIT session and admits he had doubts going in, but became a convert.

"It just makes more sense to pay one lawyer to give advice, than pay two to argue about it."

The couple involved in that divorce were breaking up a 22-year marriage. There were no children. Asking for anonymity, they say flatly, the old way of litigation, should be banned. He had experience in undoing a previous marriage when litigation was the only path.

Mediator Swinburne says he's encouraged by the growing trend to use mediation and says the centre will likely expand.

It has so far handled 30,000 requests for information, and it's a good bet most couples, armed with a little information, will avoid litigation.

"We now find many of our cases are referrals from judges. They can at any point divert disputing couples to mediation."

Lawyer Ernie Tannis is the founder of the ADR Centre and has devoted most of his career to convincing fellow lawyers about the benefits of ADR.

If family courts aren't making mediation mandatory, as most other courts have, then it's up to public education to get around the financially ruinous litigation method.

The information gap is the major block. When a marriage fails there's pain and anger. In an effort to help, friends will recommend a tough lawyer. Litigation is more about hurting than solving. Friends should recommend their own shoulders to lean on for pain relief, and mediation for financial reasons.

Copyright 2001 Ottawa Citizen Group Inc.