Harvey and Jane had a good marriage for 31 years, but over time they both changed, and their relationship broke down. Each went to a top family law lawyer. They were not able to resolve a lot of their property and spousal support issues, so Jane had to start a court proceeding.
They had amassed some assets over their 31 years of cohabitation: a jointly owned home worth $1. Million, a summer cottage worth a half million, some investments worth perhaps $150,000 and each had a pension plan through their employment which would pay them a monthly income when they retired.
Luckily for Harvey and Jane they lived in a world where there were lots of judges, court staff and courthouses. As they both knew they were going to go to court, they were immediately assigned a judge with whom they could meet within thirty days of their date of separation. With the judge’s and their lawyers’ help they set up a process to resolve the proceeding quickly.
First their lawyers would at the same time each send to the other’s lawyer and to the judge a brief three-page outline, single spaced, with just their last names and court file number at the top of the first page setting out what each wanted and why they wanted it. They would also set out a list of what information, documents and valuation evidence they needed from each other. Then within 30 days they would be assigned an experienced judge who had taken and passed mediation courses. Prior to that meeting, they would each get to have a confidential one on one meeting with that same judge so that the judge could listen to their personal concerns, fears and make sure that the joint meeting would be safe for them. In speaking to “their judge”, they would each get to frame the problems they had in their own words and the judge would actively listen to them. After that meeting, if it were deemed by the judge to be safe to proceed, the judge would then schedule a date to meet with them and their lawyers to make sure that all the evidence was properly obtained and on time. That judge had the authority to order either party to provide what the other party needed and to also deal with the question of who was going to pay for things, like expert reports and so on. The judge would also schedule another meeting date to make sure that everyone was on track with the timelines. Once everyone had all the information they needed, a date would be set with that same judge for a “mediation day”.
Then at the mediation day, if, with the judge’s help, they were able to reach an agreement, their lawyers would quickly put that agreement in writing, and they would be finished. If they still were not able to come to an agreement, that judge would fix a time for a trial. The lawyers would help set up the procedure for the trial with many options for how evidence would be presented as cheaply and as effectively as possible.
The trial would take place on the appointed day unless someone became ill and could not attend for good reason. When the trial was over, the parties would receive the judge’s decision within 60 days. In other words, Harvey and Jane would have a resolution to their problems either by agreement or by order from the judge – no later than one year after the day they separated.
Needless to say, that system does not exist in Canada within our present judicial system. The present system adds at least two years to the date when a trial could be heard, and it’s often up to three years – or four years from the date of separation before a trial date can be obtained.
People who want that ideal process have to privately pay for it – it’s called mediation–arbitration and it’s not with a judge – it’s with an experienced family law lawyer trained in mediation and arbitration procedures.
– Tom Dart, Mediator & Arbitrator
