Consequences of Refusing Mediation

[minefield]

My ex and I have previosuly gone to mediation and came to a temporary agreement for 2011. Some of the clauses in the agreement specifically state they are only applicable to 2011 and will need to be reviewed in 2012.

My ex is now steadfastly refusing to go to mediation because the changes in the agreement will require her to start paying child support and repayment of our assets (she sold the matramonial home, took the money and bought a new more expensive house, new car, new furniture, etc.).

Obviously you can't force someone to mediate, so we'll most likely need to go to court. My offers for repayment on the house are more than reasonable (spread out over 6 years, starting 2 years from now when our daughter is no longer in daycare).

In anyone's experience, would this be a good example of where a judge could award legal costs? Basically, I don't have a lot of money, as my wife kept it all, and the consequences of going to court could be worse than the status quo. We have shared custody and that is not going to change so I'm not worried about that part.

[ddol1]

my first thought is why are you allowing your ex to steal what in effect would have her in Jail for grand theft(in this case house......) a tremendous amount of money. this house must have been in her name only? But I think the risk of the loan with no real backup like a bank who would just then take good interest payments to cover their costs and risk and if non payment they would just reposess the house - period.

you should be having the amount owed to you at the signing of the divorce/seperation papers and assets should be forced sold to cover these amounts. You only need to put forth a fair and very reasonable offer and should your ex refuse then you have a solid offer to which as I understand the court would then comare the final outcome and your offer.

Last thing is what ever you let happen was so one sided to your ex I do not understand how or why you would let it happen. mediation - lasted less than five minutes for me. I am sorry but it will cost us both a great deal of money and it can't be helped. I did my best to follow the laws as spelled out by the Ontario family law Act and the divorce, and the spousal support act... My ex has taken money for the last five years and wants to continue but enough is enough if it costs me (cough) 40 grand to get my 100 or 200 grand then it is a cost of doing business. I can look at it as no other way or it will drive me crazy and give me a heart attack over it. It is not worth it - but that does not mean give it all up.

sorry - read up on th ebankrupcy rules where about 5ish months agao someone in (somewhere?) was set up with a payback scheme and followed up with the bankrupcy move and the other spouse (which reads as you) were out of luck as you were deemed as a creditor no different than all the other creditors. Get your settlement up front - Period

[Tayken]

Originally Posted by minefield

My ex and I have previosuly gone to mediation and came to a temporary agreement for 2011. Some of the clauses in the agreement specifically state they are only applicable to 2011 and will need to be reviewed in 2012.

My ex is now steadfastly refusing to go to mediation because the changes in the agreement will require her to start paying child support and repayment of our assets (she sold the matramonial home, took the money and bought a new more expensive house, new car, new furniture, etc.).

Obviously you can't force someone to mediate, so we'll most likely need to go to court. My offers for repayment on the house are more than reasonable (spread out over 6 years, starting 2 years from now when our daughter is no longer in daycare).

If your agreement has a clause to take matters to mediation then a court will select a mediator (if you don't already have one selected) and send you back more than likely. The court will enforce your agreement. It would be better to have a mediation/arbitration ("med-arb") clause. I am recommending this as arbitration in these kinds of situations is better. It forces both parties to mediate or the mediator will move things to arbitration and make a decision that is court enforceable.

Originally Posted by minefield

In anyone's experience, would this be a good example of where a judge could award legal costs? Basically, I don't have a lot of money, as my wife kept it all, and the consequences of going to court could be worse than the status quo. We have shared custody and that is not going to change so I'm not worried about that part.

If you do go on motion to resolve the issue my recommendation is to do the following first:

1. Recommend mediation and provide the name, contact information and rates for three (at minimum) mediators.

2. Failing a response or a "no" then recommend three mediator-arbitrators, attach their med-arb agreements to the offer and again, recommend three at minimum.

3. Failing that, file an application and keep the past two points (#1 and #2) and the responses for your future affidavit. Be the person who is demonstrating they are willing to consider alternative dispute resolution. Be the person to recommend it and offer choices.

4. As for costs. If your agreement has a well written clause on mediation and the other party is unwilling to mediate (solve) the problem and is just causing conflict there is a good chance you could get costs. But, if you are self represented it is a bit more difficult to get costs.

5. To do this as a self rep you need to track your time on a time sheet spent preparing all the above mentioned material. Keep copies of all the bills associated with it. Details details details. Also, a good way to demonstrate costs is to figure out how much you make an hour in your current job (although the court is awarding 100$ per hour to self reps now) and just basically create a time sheet and how much it cost you in time.

6. You would use all the information in #5 ONLY at the time the judge (after the court motion/hearing) considers costs. Don't bring it up before in an affidavit. Save it for the proper time. Many self reps make the mistake about complaining about costs right off the start which puts judges off.

7. FOCUS on solving the problem. Furthermore, if you have an offer to make that doesn't require going to mediation. By all means make it! But, make sure you do it in accordance with the rules and you notify the the other party that you are serving them an offer to settle in accordance with the Rules.

Good Luck!
Tayken

[minefield]

Thanks, that is some good advice. We do have a mediation clause in our agreement, and the mediator has called her a number of times and my ex is refusing. My ex has been telling me to deal with her lawyer. I don't plan on representing myself if this goes to court.

As for how this situation arose, we came to an agreement where she could pay off what she owed me on the house, but that didn't take into account that she'd sell the house. The house sold in July and I've been trying to be reasonable (sometimes I'm too reasonable) but she just steadfastly believes she is righ to withold the money because our "original agreement" didn't deal with that. And yes the house was in her name.

The bankruptcy scheme does worry me. The really sad thing is that this does not have to happen, reasonable people should be able to solve this relatively quickly. I guess that's why the marriage fell apart in the first place.

[ddol1]

What Tayken says - is always well thought out and I have never thought anything but he is the backbone of the way to think to resolve our issues. I am thankfull for what he offers everyone here and again his words = wisdom.

One thing that Tayken and a few others have brought to this forum is methods to remain reasonable to come to an agreement and do everything possible and document to resolve before going to court. Sometimes we run into a situation where we find ourselves dealing now with very unreasonable people who could sit down and resolve issues but things are not that way .

Not sure if the following will make sense but I shall try my best: you (we) are now facing unreasonble people who have their own objectives and if there was any issue within the marriage that was difficult, say communication - one may expect that the level of communication required to resolve the many difficult issues upon the the breakdown of the marriage would mean you would need to communicate at a higher level than you managed to ever achieve during the marriage - divorce is not an automatic fix. So many of the people here have this in common and it takes two sides to find that common ground - we are not finding it, Tayken offers many great alternate solutions but if your spouse is determined to be unreasonable, or has alterior motives, wants to cause pain and hurt, children often pay a very dear price when this gets out of hand.

So you must try and be reasonable and try to resolve issues but at the same time prepare for the worst, document everything you can think of and it only takes one to have what may be a resolvable issue shoved into the court system. Again everyone loses but there comes this time where you do not have a choice - you hope the courts can be fair or you give into or conceed every point which at least in my situation is not reasonable for my future. I still hope I will not stand in front of a judge but I expect this will be my fate. This is what I prepare for. There are no winners in Family Law IMHO because no matter what everyone loses something.

[minefield]

Thanks ddol1. Divorce seems to be more of a balancing act than marriage. The biggest problem for me is that my ex was seriously abused as a child, creating long term problems with anxiety and depression. Those aren't fun to deal with, as I don't want to contribute anymore pain, but she's not leaving me any choice.

I feel the solution is fairly easy to achieve (payment terms on the house, child support based on table amounts, daycare expenses split on income % and shared custody). The problem is getting the ex to understand that whether we like it or not, we are attached at the hip financially until the kids have their own careers. She does not like that at all, creating the problems.

[Tayken]

Originally Posted by minefield

Thanks ddol1. Divorce seems to be more of a balancing act than marriage. The biggest problem for me is that my ex was seriously abused as a child, creating long term problems with anxiety and depression. Those aren't fun to deal with, as I don't want to contribute anymore pain, but she's not leaving me any choice.

This can often result in the formation of an Axis II disorder of the personality. Generally, it can result in a Cluster B (sociopath) or Cluster C (avoidant) blend of personality traits.

Based on the information you have provided regarding the other party's behavior you could be dealing with a mix of B&C clusters. Be very aware of the impact that the past problems may have on the other party. Don't go pointing fingers at them for being this... But, there are great resources to help you resolve issues with potentially Axis II disordered individuals.

"It's All Your Fault!" - William Eddy is probably the best resource out there to read. His other materials in the space are excellent as well.

Originally Posted by minefield

I feel the solution is fairly easy to achieve (payment terms on the house, child support based on table amounts, daycare expenses split on income % and shared custody). The problem is getting the ex to understand that whether we like it or not, we are attached at the hip financially until the kids have their own careers. She does not like that at all, creating the problems.

You are probably a "math" person. Here is an interesting article to read on the difference possibly between you and the other party.

When Math People and Feelings People Negotiate

When Math People and Feelings People Negotiate

Good Luck!
Tayken

[minefield]

Thanks Tayken, you are very perceptive and people need to buy you a drink. The ex is most likely Borderline Personality Disorder (BPD). And ya, I learned the very hard way that pointing out BPD to a person with BPD is like hitting a rubber tire with a hammer.

I've definitely tried the easy going, no blame methods but what happens is change (she sells the house, kids start school, etc.) seems to cause her problems, and these changes are unavoidable. She is clinging onto the original terms of our interm agreement and she's basically dissociated. I've tried to give "positive signals" but now she has a lawyer who is feeding her potential problems (normal stuff for normal people, scary stuff to people with BPD) which is amplifying her fears. That's why I feel mediation is the way to go. If it does go to court, I'm taking your advice to have the judge throw it back to the mediator, since we have that clause in our current, though outdated, agreement.

I do have "math type" characteristics, but I'm not inflexible. I usually allow the mediator to define numbers, but even when the mediator makes a mistake (and she did) my ex is unwilling to accept that. Obviously a judge can fix all of that but it ends up being a Pyrrhic victory.

[Tayken]

Originally Posted by minefield

Thanks Tayken, you are very perceptive and people need to buy you a drink. The ex is most likely Borderline Personality Disorder (BPD). And ya, I learned the very hard way that pointing out BPD to a person with BPD is like hitting a rubber tire with a hammer.

Interesting way to put it and agreed. BPD is generally a constant state of confusion (cognative distortions) and hard to diagnose. It isn't a widely known disorder in Canada in the mental health community. There have been a rash (unfortunate) of suicides that clinical investigators have linked to BPD. Hopefully the mental health care system wakes up and starts to realize the impact Axis II disorders have.

Another thing that may help bring realization to the whole Axis II disorder is the upcoming changes from DSM-IV-TR to DSM-V. The classifications for Axis II disorders are much more fluid and easier to codify and apply than the old Axis II flat coding system. Most clinicians in Canada in the mental health space are behind the times when it comes to Axis II disorders.

Family Law... Some are waking up (i.e. Justice Quinn) and realizing that it is a problem and driving a lot of high-conflict matrimonial disputes.

Originally Posted by minefield

I've definitely tried the easy going, no blame methods but what happens is change (she sells the house, kids start school, etc.) seems to cause her problems, and these changes are unavoidable.

Ones adaptability to change is reflective of their patterns of behaviour with regards to their personality. Axis II disordered people can't deal with change. In fact, they have a fear of change, fear of being judged, fear of social situations, fear of being "destroyed". Eddy covers the "fears" quite well in his materials.

Originally Posted by minefield

She is clinging onto the original terms of our interm agreement and she's basically dissociated. I've tried to give "positive signals" but now she has a lawyer who is feeding her potential problems (normal stuff for normal people, scary stuff to people with BPD) which is amplifying her fears.

Negative Advocate Solicitor (lawyer) is the proper term. If you look on BPD Central you will find a very good definition on this.

One of the things you need to be is assertive but, within reason. As Eddy says in "Its all Your Fault" listen with your "E.A.R.".

Paranoid delusions are not uncommon with Axis II disordered people. Their "fears" (and/or worries and/or anxieties) drive their emotional reasoning. If you are able to slice apart the emotional reasoning and differentiate fact from fear you can curve the conflict.

But, always be assertive.

Originally Posted by minefield

That's why I feel mediation is the way to go. If it does go to court, I'm taking your advice to have the judge throw it back to the mediator, since we have that clause in our current, though outdated, agreement.

In this situation I would recommend you find a mediator with a pure mental health background and law background. Collaborative Law may be a better choice for you in this situation. They tend to have a better perspective on the mental health issues facing litigants in Family Law.

Originally Posted by minefield

I do have "math type" characteristics, but I'm not inflexible. I usually allow the mediator to define numbers, but even when the mediator makes a mistake (and she did) my ex is unwilling to accept that. Obviously a judge can fix all of that but it ends up being a Pyrrhic victory.

So is the problem with Family Law in general. Pyrrhic victories are not uncommon. It usually happens when one litigant has spent the time educating themselves and the other hasn't. Often people exhibiting Axis II disorders force matters into the court because of their desire to "win" at all costs. They retain negative advocate solicitors who just see them as a running payroll to their lifestyle.

I have seen judge after judge tell litigants at motions that their lawyer is doing them service by allowing the conflict to continue and to get a new lawyer... But, they don't listen. That is when the judge should realize the litigant, not the solicitor has the problem too and someone needs to intervene to protect the other party in the litigation.

Good Luck!
Tayken

[Tayken]

Originally Posted by ddol1

What Tayken says - is always well thought out and I have never thought anything but he is the backbone of the way to think to resolve our issues. I am thankfull for what he offers everyone here and again his words = wisdom.

I do make mistakes. Hammerdad, NBDad and others often are quick to correct them or provide a different perspective. I would add persuinghappiness to the list as well. In fact, there are a lot of great people posting on the site.

Being reasonable is difficult for people not under stress of separation and divorce. Being reasonable in separation and divorce is incredibly hard to do. It is the most emotional aspect of law in my opinion. Severing emotions from the problems and coming to resolution (solving them) is hard.

Good Luck!
Tayken