Cam was called to the Bar yesterday and has opened his own boutique law firm, Monsef and Company.

Definition of Mediation

Mediation is a dispute resolution process by which two or more parties volunarily attempt, with the assistance of an impartial, neutral, trained person, to negotiate and formulate their own consensual resolution of matters at issue between them.

The mediator manages the process but has no independent decision-making power respecting the substantive outcome of the negotiation.

Definition of Collaborative Law

Collaborative Law is a relatively new dispute resolution model in which both parties to the dispute retain separate, specially trained lawyers whose only job is to help them settle the dispute.  If the lawyers do not succeed in helping the clients resolve the problem, the lawyers must step down and cannot represent either client against the other again.  All participants agree to work together respectfully, honestly and in good faith to try to find “win-win” solutions for both parties.  If a party decides to opt out and go to court, the collaborative law process ends and both lawyers are disqualified from any further involvement in the case.

Collaborative law is primarily used in the family law area in BC.  Other jurisdictions are experimenting with its use  in estate law and civil litigation.

Status of Mediation in BC

In November 2007, the Nanaimo Supreme Court registry launched a pilot project allowing any party to a family law proceeding to apply for mediation by delivering a Notice to Mediate.  The Notice to Mediate (Family)  Pilot Project expanded to Victoria and Duncan Supreme Court Registries in April, 2008.

In BC, Provincial Family Court litigants must meet with a Family Justice Worker and attempt mediation prior to setting a hearing unless a matter is urgent.  In Supreme Court, Judicial Case Conferences are a mandatory form of mediation prior to setting an application, other than a few limited exceptions.

The BC Attorney General has a Dispute Resolution office which supports a Family Mediation Practicum Project (of which I am a graduate).  The BC Attorney General’s office is reviewing the Family Relations Act and a recommendation of a required “consensual dispute resolution” (CDR) session prior to being permitted to commence the court process.

As of November 2007, all cases filed at the Robson Square (Vancouver) Registry between $5000 and $25,000 (except for debts) and all personal injury claims will be referred for a two hour mediation session at no cost to the parties.

Lawyers are also using mediators to resolve disputes.  The Law Society has a Fee Mediation Program for fee disputes between clients and lawyers, and the Canadian Bar Association offers mediation services for lawyers who are experiencing issues professionally and personally with other lawyers.

Canadian Press Article:

OTTAWA — The country’s highest court has topped up a $1-million divorce settlement with an extra $649,000 for a British Columbia woman who complained her former husband hid assets and took advantage of her fragile mental health in negotiating a settlement.

In a 7-0 judgment Thursday, the Supreme Court of Canada effectively rewrote the original deal signed by Nancy Rick when her 28-year marriage to Ben Brandsema foundered in 2001.

Justice Rosalie Abella, writing for her unanimous colleagues, noted the court has ruled in the past that judges shouldn’t lightly interfere in settlements worked out between divorcing spouses.

“Parties should be free to decide for themselves what bargains they are prepared to make,” said Abella. But she went on to add that “this contractual autonomy depends on the integrity of the bargaining process.”

In this case, Abella concluded, there was ample evidence the two sides weren’t playing on a level field.

Jack Hittrich, the lawyer for Rick, welcomed the judgment as a “resounding victory” for his client but said it will have repercussions beyond her case.

“The underlying message for divorcing couples is that if a party is not coming to the table with clean hands there are going to be consequences,” said Hittrich.

“If parties negotiate fairly they have nothing to worry about.”

Rick and Brandsema reached a deal when they split up that gave the wife a house and cash payments worth just over $1 million, while the husband kept control of the family dairy farm and other lucrative property.

The aim was supposed to be to divide the family assets equally. But two years later Rick went to court to claim that Brandsema had misled her on the value of some of his holdings and had failed to disclose others at all.

She also maintained he exploited her emotional problems, including a history of depression, anxiety and post-traumatic stress arising from a troubled childhood and aggravated by a difficult marriage.

Brandsema’s lawyers argued Rick had exaggerated her mental health problems and had deliberately schemed to take the original $1 million and then go back to sue for more.

They also maintained that, when the tax implications of the settlement were taken into account for Brandsema, the deal worked out to a roughly equal division of assets.

A trial judge ruled Rick’s favour, concluding she was a “troubled woman” who had difficulty grasping the legal advice she go and the mediation process that led to the original deal.

The judge also found that Brandsema had taken advantage of her mental state and had failed to make full disclosure of his assets.

The B.C. Court of Appeal reversed those findings, stating that despite her mental troubles Rick “knew what she was doing,” and Brandsema had no obligation to tell her she wasn’t asking for enough.

The dispute renewed long-standing questions about when a negotiated divorce or separation agreement should be treated as final and when the courts should intervene. The issue has wide-ranging implications, since an estimated 90 per cent of divorces entail so-called amicable settlements rather than court-imposed orders on division of assets.

The Supreme Court, in a landmark 2003 judgment, stated that judges should be reluctant to interfere in most negotiated settlements. But it left the door open for intervention in exceptional circumstances – including cases where assets were hidden or the “vulnerability” of one partner was exploited by the other.

Abella said the B.C. appeal court misinterpreted some principles flowing from the 2003 ruling, while the trial judge got them right. She accepted his findings and endorsed his calculation of $649,000 as the appropriate add-on to Rick’s settlement.

Copyright © 2009 The Canadian Press. All rights reserved.

Law Society of BC

845 Cambie Street

Vancouver, BC

June 12-13, 2009
Donald Gordon Conference Centre
Kingston, ON

Presented by the National Elder Law Section and the Continuing Legal Education Committee of the Canadian Bar Association

Conference Co-Chairs:
Mary-Alice Thompson, (Kingston)
Prof. David Freedman, Queen’s University Faculty of Law (Kingston)

This conference brings academics and practitioners together to talk about one of the hottest emerging areas of law – Elder Law. Join us for one and a half days and bring yourself up to speed on the latest developments across the country. Good practice relies on solid research and good theory is informed by practical experience. This is a unique conference where academics will share their research and practicing lawyers their experience and you are invited to participate.

The program brochure and registration information will be posted on the CBA web site shortly.