Dec 15, 2017
Is a battle with
lawyers the best way to resolve the details of your separation?
Absolutely not! The adversarial system pits spouses against
each other, leaving them and the kids stressed out with a giant
legal bill and a deteriorated ability to communicate. In this
episode, Christina Vinters discusses what mediation is and how it
helps separating couples resolve conflicts in a way that is
respectful, efficient, and designed to meet the needs of each
family.
Your host, Christina Vinters, is a nationally designated Chartered Mediator on a mission to inspire and facilitate healthy family transitions. She is an “ex” Divorce Lawyer (Non-Practicing Member of the Bar), Author of Pathways to Amicable Divorce, and the DIY Divorce Manual, and Peacemaking Business Consultant.
Modern Separations Links:
Website: https://www.modernseparations.com/
Facebook: https://www.facebook.com/modernseparations
Instagram: https://www.instagram.com/divorcewell
Twitter: https://twitter.com/cvinters
LinkedIn: https://www.linkedin.com/in/cvinters/
Download a complimentary copy of Pathways to Amicable Divorce.
Transcript:
Christina: Hello! So today we're doing
something a little bit fun and I'm having the tables turned on me
today. Up until now, I've been focusing on talking to people about
different ways of helping you through the separation and divorce
process, but today we're gonna be talking about actual dispute
resolution. And so I'm here, with my husband and business partner
Juris Vinters.
Juris: Hello!
Christina: So Juris is going to be interviewing me today, about mediation.
Juris: So maybe we can start with the broader question about what mediation is and other kinds of dispute resolution.
Christina: Okay, so a mediation is a voluntary process and it's a way of helping people resolve disagreements with a help of a neutral professional.
Juris: So let's look at a couple of elements of that, so when you say it's a voluntary process does that mean that both people need to agree right off the bat? Or do you have situations where that's a little different, tell me about that.
Christina: In most jurisdiction, it is something that both people need to agree to, it's something that they would need to each recognize is in their best interests to try. In some areas there can actually be a court order made that people are required to mediate before proceeding with any court applications, but generally speaking, both people will decide that they would like to mediate. They choose their mediator and then they decide how they'd like to structure the mediation.
Juris: Okay, so tell us about some different ways of structuring that mediation.
Christina: Well, first of all, mediation is something that is used quite extensively around the world, and it is the way that a lot of cases are settled even when they have gone through extensive court proceedings. So in those types of cases where there has been a lot of litigation maybe several interim applications, generally the lawyers will recommend that you schedule a one-day mediation before the trial, to try to save the extensive court fees that would be required in a family case. So in that type of case, both participants and their lawyers and a neutral mediator would generally all attend in one location for a day and try to work through all of the issues. It's kind of a marathon, where you hunker down and you work and you try to hammer out all of the details before the end of the day to try to avoid the trial.
Juris: Okay, so even in a lot of adversarial
cases mediation actually turns out to be the way that disputes are
resolved?
Christina: Yeah, I mean the percentage is gonna
vary by jurisdiction, but it's a very high percentage something
like 95% of cases settle without going to trial. So a lot of cases
take a long time going through the court process, where there's
preparation for court and interim applications but the actual final
trial, where a judge makes a final decision on all of the issues
for example parenting, or property division that may not ever need
to occur.
So getting back to the different possible structures for mediation, another structure rather than that day long marathon I was just talking about, is to do several shorter meetings. I like to do one meeting a week for one to two hours at a time. In that way, people feel the momentum of the progress their making. I'll talk more about this format a little bit later when we get into more detail about my practice.
Another option which is not one that I recommend very often, but it is a possibility and maybe a good choice in some rare circumstances is shuttle mediation. And that is where the mediator would go back and forth between the two parties. This can be helpful if tension is so incredibly high that people just absolutely can't talk to each other. It's also a possible solution in cases where there's a restraining order and they're not actually allowed to have direct communication.
Juris: Alright Christina, so why don't you tell us a little bit about your story, how did you go from practicing family law in a big firm to doing a mediation, having your own mediation only practice?
Christina: Yeah, so I practiced exclusively in the area of family law for several years. Initially, I really enjoyed it, I enjoyed that direct contact with clients and helping them through what for most people is a really difficult part of their life. But over time I became really disillusioned with the traditional court process and I found that it was just costing my clients too much money, taking way too long, and the stress of the adversarial process where spouses are pit against each other's adversaries, just made communication more difficult, co-parenting more difficult and I decided I really wanted to do things differently. So I looked at all of the different ways that I could potentially help families, and I decided that from my perspective mediation is the most effective and that's where I wanted to focus my time and energy.
Juris: So tell us how writing your first book played into that decision for you.
Christina: Okay, so I wrote Pathways to
Amicable Divorce: Directions for the beginning of separation at the
beginning of 2016. Initially, that was a bit of a marketing
exercise, I wanted to write a book to help people know what I'm all
about. And so I was still working at a big firm as a family lawyer
at that time. But it was through the writing of that book that I
really clarified my own thoughts and principles, to such an extent
that I felt that I could not continue in good faith working in the
adversarial process anymore. So it really spurred me on to think
about how can we create a business that will work better for
families and for me as a professional.
I found it quite frustrating as a family lawyer to have my clients
spending so much money and time, and stress going through that
period of time. Usually, a lengthy period of time, sometimes a year
or two before a trial would happen. And then have the case settle
at a mediation. So I wanted to try and reimagine the process and
given that mediation was so successful in so many instances, I
wanted to try and find a way that my clients could have that
benefit without all of the expense and stress of the court
preparation. And so that is how I decided to create the business
model that we have now, which encourages people to try mediation
right off the bat before they've ever started any kind of court
proceeding.
So the way that I work with people is when they've decided to separate, the earlier the better they can contact us and then we work with them directly, generally, they will attend meetings without lawyers. A lot of people do consult lawyers in between meetings to get feedback on particular issues where there may be disagreements but it's a very directive focused process where we usually meet once per week. And those meetings can be, sometimes they're in person, but they're often by phone, or skype or zoom. By meeting once a week we keep the process moving forward, and most of our clients end up being done with a written agreement before the end of a month.
Juris: Wow, and so how does that compare to the traditional process in terms of time?
Christina: Well in the traditional process where mediation is done as a last-ditch attempt before trial it can be a year or two before people try mediation. And that would generally tens of thousands of dollars of legal fees in the meantime.
Juris: What kind of people are best suited to mediation, and are there people for whom mediation is not really appropriate?
Christina: Well mediation is flexible that it is appropriate for most people. And it's a very low-risk strategy so there's no harm in trying it, you might lose a few weeks of time but that's about it. I've had clients who had already talked about a number of the issues and were pretty much on the same page but needed help just hammering out some final details. So that obviously works really well. But on the other end of the spectrum, I've also had clients who were not willing to speak to each other, couldn't look at each other in the eye. But with the presence of a neutral person, they were able to reach an agreement also in the same span of just a few meetings.
There are cases where there might be a very skewed power dynamic, for example, if somebody has been in an abusive situation for quite a long time and they just cannot stand up for their own rights and what they believe is fair then it may not be appropriate. But even then if they can attend with their lawyer or another support person, then even for them it may work.
Juris: So what about people who say, okay my partner is really great at verbal sparring and I'm just not built that way and isn't mediation going to kind of tilt the playing field in that person's favor. How can I make sure that it's a reasonable and equitable process for me?
Christina: That's not uncommon. I suppose the thing that helps set someone's mind at ease is the mediator is not a judge. So the people are not trying to convince the mediator of anything, they're not trying to bring the... well they might be trying to but it's not the mediator's job to decide who has a better argument. It's the mediator's job to find some common ground to give general legal information about the issues that are being discussed, a range of possible options and what the court may order in that type of case and to try to help them brainstorm about creative solutions. It's also the mediator's job to make sure that both people are feeling comfortable and that the process is working for them, so, for example, some people may think really fast on their feet and they're comfortable coming up with proposals on the spot, while the other person may need to really think things over and needs some time to digest so in that type of case it might be a good idea to have that person who's comfortable in the room creative proposal and then have the other person consider that in time for the next meeting to be able to come up with a response at that time.
Juris: I see so it's your job as a mediator to make sure that the process proceeds in a way that both people's cognitive styles or decision-making styles are taken into account, both people are comfortable?
Christina: Yeah, I mean that's certainly the process that I follow, I can't speak for all mediators but in general that should be the principle, is that it's meeting both people's needs.
Juris: Okay, now what about a situation where one person is very much open to mediation and the other person might be hesitant or you know might have a feeling "oh I wanna take this in front of a judge, because I'm right and the other person's wrong and what is mediation gonna do for me?" Do you ever come across those kinds of situations?
Christina: Yeah, so sometimes people will have pre-conceived notions about you know maybe if it's a woman mediator she's gonna favor the wife or maybe there's just a general mistrust about professionals. The key is for both people to be in a place where they recognize that it's their own best interest to try to come up within agreement. So, sometimes with somebody like that, who's very resistant they may end up in the court system for a period of time and then they may get to a place where they've spend too much money on lawyers and too much time has passed without resolution before they get to a place where they're ready to think about mediation. But there are lots of resources that you can share in terms of trying to educate. I would encourage if you're a spouse and you would like to mediate and your spouse is reluctant, try to provide some educational resources so that they know what mediation is and they're not just making assumptions about that. So, for example, we have my book on our website, which is a free download, you don't need to give us your email or anything. And that's a book I wrote called Pathways to Amicable Divorce, and one of the components of the book looks at is what are different types of Dispute Resolution Mechanisms, so there is this section in there on what mediation is all about.
Juris: Okay, that's helpful.
Christina: Yeah and you can get that at modernseparations.com/separation
Juris: Let's talk about the end of the
mediation process, so what is the result and what kind of paperwork
do you come up with and how is that used?
Christina: Okay, so we're in British Columbia and
here a mediator, a lawyer-mediator is allowed to draft a final
separation agreement. And that's what I prepare for our clients, we
go through all of the issues relating to their separations, which
depending on their situation may include parenting
arrangements, division of property and debt, and various
details around support. So all of that is documented in a final
agreement, and then as long as it is signed properly, it will be a
binding legal agreement. Now if there are any issues with somebody
not abiding by the agreement, it can be filed with the court for
enforcement.
Juris: I see so you don't need to take an agreement to the court just as a general rule once it's been signed.
Christina: No, it's like any other contract so, for example, like if you sign an agreement with a new cell phone provider that's a legal agreement and it's not filed with the court so it's just like that. Now in other jurisdictions for example in some states, it is required that you take your mediated agreement and present it to the court, in order to have that be a final resolution, so you would just need to check in your jurisdiction what the requirements are.
Juris: Maybe you could tell me about the benefits of mediation.
Christina: Mediation allows couples to come up with creative solutions that are particularly suited to their own family and circumstances. They're gonna be in the best position to know their own family and their needs as well as their history, so they're able to craft an agreement with all of the nuances to ensure that it's fair and appropriate for them and something that they will be able to live with going forward. Generally, when people do craft their own agreement when they've had a hand in creating it and agreeing to the terms they're gonna be more likely to abide by the agreement rather than having terms imposed on them by a judge. Often court orders are followed up by appeals or applications to vary the order for this reason or that reason. Whereas agreements that couples enter into tend to be more durable.
Juris: I see so it also helps couples
communicate going forward? Would that be fair to say?
Christina: Well the process does help them start
to create a new model for their communication. So they're moving
from being in an intimate relationship of spouses to being
separated individuals and often we're talking about co-parents. So
they're no longer intimate partners but they may be co-parents. And
in that situation of course, it's really crucial that they'd be
able to communicate well. So the mediation is a guided process
which helps them learn how to communicate effectively and
respectfully in their new roles. And a lot of agreements do include
terms regarding how communication will occur in the future so we
look at what their preferences are - whether they prefer phone or
text or email and how often communication can occur we can get into
a lot of detail around that to make sure that it's appropriate for
them.
Juris: So tell us about the benefits of mediation
for families with children.
Christina: Yeah, I think it's huge. Studies have
shown that it's a conflict through the separation and divorce that
really harm kids, not the actual separation itself. So everything
that we can do to de-escalate conflict and help parents communicate
better is going to help their children develop in a healthy way,
and not have long-lasting issues resulting out of the trauma that
occurs when they're exposed to conflict. So mediation helps parents
communicate better, it starts them off essentially working together
on the joint project of coming up with the details of their
separation. It models a way that they can communicate better, and
it allows them to tailor their agreement for the exact needs of
their particular children.
Juris: So mediating face-to-face isn't the only
option, right? Tell us about e-mediation and different ways of
communicating that their benefits.
Christina: Yeah, so I do a lot of e-mediation.
E-mediation is sometimes referred to as "online dispute resolution"
or "distance mediation". Really it just means that we may be
communicating by phone, where I set up a teleconference and
everybody is talking on the phone. Or it can be video chat like
Facetime, Zoom or Skype one of those platforms. What I found is
that I think that for couples where there is a lot of tension, it
helps reduce that a little bit because it takes out the element of
physical proximity. People can participate from the comfort of
their own space, it helps a little bit with scheduling because it's
easier to attend a meeting when you can attend from wherever you
are, in the privacy of your office or your home and you don't have
to battle through traffic or actually get to a different location.
It makes the scheduling easier which means we progress through the
process a little bit quicker. And people just seem a little bit
more comfortable in those situations where there is a higher level
of tension.
Juris: I guess it would help reduce triggers - the
visual triggers or those kinds of things that would upset people
off potentially.
Christina: Yeah, so particularly the phone - so
you might think at first that the phone would not be very effective
but it's actually the opposite for exactly that reason that you
don't have. There are such minute details which can trigger people
after relationships, so it might be a very, very slight facial
expression, you know, a raised eyebrow, rolling the eyes, body
language. So when we take all of that out, it really helps to focus
on the issues.
The other thing I've noticed is that if we're talking by video
chat of phone, people seem to be really focused on the business at
hand. The meeting takes less time, and I think that's because when
you've made the effort to physically go somewhere, there's kind of
this sense that you want to have it be worth your while or be
worthy effort. So my in-person meetings will often take a full
2-hours, whereas phone or video chat meetings are usually quite a
bit shorter than that.
Juris: So you could have clients who are very
close to the office who you recommend e-mediation to and that
actually works better for them rather than jus even taking a few
minutes to come into the office.
Christina: Yeah for sure. So either if there is
that highly emotional sensitivity in this situation, or for people
whose schedules are extremely busy and they have difficulty taking
time out of their schedule to go to a different place for an
appointment, it can work well. It's also great you know in this day
and age where people travel so much for work, you don't necessarily
have to stop the mediation process when someone is out of town, so
we will often, for example, have somebody who's local and somebody
who's working up north, but we can continue with our schedule with
one meeting per week regardless of where they are because all we
need them to have is either a phone or an internet connection.
Juris: And I guess that applies to smaller
communities and more of other remote communities as well, it
bridges that geographical divide.
Christina: Yeah, so there are lots of smaller
towns that are under-serviced, where they may not have a family
lawyer, a family mediator, and then on the opposite end of things
there in the big cities where legal fees might be $500 or $800 per
hour, something crazy like that's out of the reach for most
families. So it's a way of accessing service that is appropriate
for your family but not necessarily in your geographic area.
Juris: Okay, so maybe you can talk a little bit
more about that flexibility and mediation for creative and unusual
solutions, maybe if you give an example of something like that?
Christina: So when we talk about creative
solutions, one of the first things that we like to do is to
actually talk about what the underlying interests are for people.
So interests would be to deeper motivations as opposed to position
which would be something like "Well I want to keep the house" or "I
want a certain amount of child support". Those are specific
positions that people may take but if we'll take the house example,
we would want to get into why somebody wants to keep the house - is
it they have a personal connection to that particular house, or is
it that they want to make sure that they feel safe with the roof
over their head and a safe neighborhood, which could potentially be
accomplished with a different house. So we'd like to look at that
underlying reasons for their stated preferences.
One of the classic analogy is that they use in mediation training,
for example, is if you have a couple of people who are arguing over
an orange, a non-creative solution would be to just cut the orange
in half so that they each get half the orange. But with a little
bit of discussion, they can discover that one of them wants half
the orange because they want to make orange juice, and they want to
use the inside of the orange. And the other person wants to make
chocolate-covered orange peels, and actually only wants to rind. So
by having that discussion in getting into little bit of the details
and know why, we find that it actually makes more sense for one
person to get all of the rind and the other person to get all of
the inside of the orange. And we can use the same type of analysis
in family law.
So scheduling is one of the most intricate details of a parenting
plan. And for some families, the schedule can be quite
straightforward, for example, the kids might be with one parent one
week, the other parent the other week, that's not very complicated.
But we situations where sometimes people do shift work, or one
parent works out of town, or you might even have a combination of
those types of issues and we need to be really careful in detail
about coming up with the schedule that will provide both
predictability and flexibility. It's important for people to have a
plan they can fall back on if they do end up disagreeing about
something and to have it structured enough that they're having to
negotiate new details on a weekly basis.
Juris: Aha, so we've all heard stories about that
couple that goes to court, you know, 8 weeks before every Christmas
to get a judge to make a decision on who gets the kids this year.
This provides a different kind of model. Christina: So usually we
do put in quite a detailed plan around holiday sharing. The ideal
agreement should set out a plan that parents will be able to go
back to and use for several years. Now kids do grow and change so
of course, reviews will be required as their needs change, but for
example, with respect to something like Christmas, we wanna try to
come up with a plan that they can look at each year and know what
they're doing.
Juris: Maybe you could give us an example of how your clients have benefitted through the process of mediation, say what they're like when they come in to the process, and how they approach each other by the end of the process. Have you seen dramatic shifts that way?
Christina: I have seen some really dramatic shifts. There are of course come couples who come in and they're on surprisingly on good terms to start with and the process goes quite smoothly but there are also couples who come in who are very where the individuals are each very stressed or very anxious about the process. And they might be quite uncomfortable with speaking with each other. Over the course of the meetings and generally, most of our clients require two or three meetings seems to be the average. Over the course of those meetings, I find that people develop a sense of relief so the more details we figure out the better they feel. And by the end of the process when we've determined exactly how they're going to deal with all of the issues, a lot of clients tell me that they feel a big sense of relief. A lot of them are surprised with how quick and easy the process was.
Juris: So it's almost like, the fear of creating the agreement is worst than the actual resolution. So as things are resolved then that burden lifts off of people?
Christina: Yeah, I think so. Well having so many unknowns about your life causes most people a lot of anxiety. So in a lot of separations, there's gonna be a lot of questions about where am I gonna live? How much money am I gonna have to live on? What's gonna happen with my debts? Are my kids going to be okay? And the more of those questions you can answer the better people feel and the better they feel, the easier it is for them to actually get along and communicate in a respectful productive way. So I do notice that shift where tensions will ease and for example, the co-parenting relationship will often get better once the agreement has been signed because now they're not worried about what the other person may do on a variety of issues.
Well I don't know about healing but in our culture there are so many negative associations with the experience of divorce that most people have heard terrible terrible stories from their friends and their family have experiences that they have had. So they can't help but be fearful about the process and how it may go, even if the two of them have the intention to have an amicable divorce, there's that fear in the back of their mind. So when it does go relatively smoothly and they get through it, there is a sense of relief for a lot of people.
Juris: So what have you enjoyed most in the past couple of years with Modern Separations?
Christina: Well, I've really enjoyed helping people get back to functional lives. You know, it was so frustrating for me to see clients with relatively minor issues, having those issues just drag on and on and on because of failures of the system. So, now I get to actually bring resolution and calm to people\s lives on a regular basis and I personally find that really satisfying. It's really nice for me when clients do express a sense of relief at the end of the process, or they tell me "Oh this was so much easier than I expected it to be". It makes me feel good that they can move on.
Juris: So tell me a little bit more about this idea of transitions and how you're helping people move through family transitions as a guiding principle in the business.
Christina: In our culture these days, people are experiencing often up to two or three significant separations in their lifetime. Divorce and separation is so common, we all know somebody who has been through the experience. We may have close family members who have been for through the experience, so it's not something that is anomalous. And it's something that I think is really important that we find a way to help people deal with in a healthy way. We know it's statistically very common and it's really not something that the default process shouldn't one that routinely traumatizes families. When children are exposed to conflict for any period of time, studies have shown that that can actually have long-term effects on them. So, it's really crucial for our society as a whole that we learn how to deal with separation in a healthy way.
Juris: It sounds like you're at the edge of a social movement that's starting to really gain some traction.
Christina: A part of what I've been trying to do is provide education to the public about this new way of thinking about divorce. We don't want to go with those old assumptions that divorce has to be a nasty brutal process. There are other ways of handling your divorce, and there are professionals out there who can help you through this in a respectful and healthy way.
Juris: It seems like it takes bravery for both clients and practitioners to go against the kind of the standard model and find new ways of going through these transitions.
Christina: I think because of the assumptions that we have in our culture about divorce, the first instinct that people may have is I need to go get myself a bulldog of a lawyer to protect myself and go after everything that I'm entitled to. So it does take some mindfulness, some broader thinking about your actual goals to make a considered decision about what is actually the best first step. It's definitely good for people to get some legal advice, but they don't necessarily need to be represented by a lawyer that something that's out of their reach of a lot of families to pay for a lawyer to handle your entire case. And frankly it's more efficient if people are comfortable dealing with a mediator on their own. They can move through the issues on a much quicker pace and then, you know, maybe just make one or two appointments with the lawyer as they feel necessary to bout some ideas off them and make sure they're going in the right direction.
Christina: Alright well this has been a lot of fun, thank you for letting me be the interviewee.
Juris: Oh thanks! It's been fun.
Christina: Yeah, so I think before we end though, just be interesting for me to ask you as a newcomer to this area, this industry, what your perspectives are on mediation. And we should just tell people what your involvement is.
Juris: Right, so I'm the point of first contact where people call us and I'll discuss the process and people often have a lot of questions and people need to talk a little bit and understand what we're all about and get comfortable with our way of doing things. I'll often take quite a bit of time talking to people when they first call or talking with both spouses over the course of some time. Occasionally just to make sure that they're comfortable so that they know what the process is like and what to expect. I guess I have a whole new appreciation for what do you and how it affects people because when people first call, often there's this quite a lot of stress and anxiety and they're just looking for some basic answers and a map to how they can get through this. And so a month later or even faster sometimes, they're done and actually ready to move on, which is amazing to see.
Christina: Okay, well I think we will wrap this up but was fun and maybe we'll do this again on an another topic.