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Divorce & Family Law This forum is for discussing any of the legal issues involved in your divorce.

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Old 10-17-2017, 12:42 PM
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After 2 final orders and 2 mediation agreements, which he is NOT following, he wants to go back to mediation again.
He continues to create conflict, in fact took the phine from our daughter last night and threatened me "if you don't agree to mediation....."
I don't want to go to mediation . He was abusive, controlling and 2 times already mediation has failed. Sure we came to agreements, but he has not followed half of it. I don't see the point in allowing him yo continue to intimidate me through the legal/mediation process. It's been 8 years!

I do not feel safe. He constantly texts or emails Me, threatens me and is hounding our daughter. I need to stop this now

Here's my question: can I make him an offer instead of mediation? We have that mediation must be done before filing a motion but we have done that twice already.
I feel safer making an offer and if we can't reach agreement I can file a motion.


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Old 10-17-2017, 12:53 PM
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Most agreements say mediation before court. File your motion, make a reasonable offer to settle and go from there. If the judge asks why you didnt do mediation you can show he refused to follow the agreement reached at mediation.

If hes as difficult as you say, the judge at the first case conference will see it themself.
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Old 10-17-2017, 01:10 PM
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with or without mediation you can always make a reasonable offer, nothing is barring you from making and offer to settle.
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Old 10-17-2017, 01:14 PM
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Plus an offer helps you if you pursue costs.
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Old 10-17-2017, 01:44 PM
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I'm not convinced that the "mediation before motion" clauses are actually enforceable. You cannot contract yourself out of the right to go to the courts.

I don't think I've ever read a motion on canlii that was thrown out because they didn't go to mediation first. Doesn't mean it hasn't happened, has anyone come across some case law that addressed the issue?

To answer your question: The answer to the question of whether to make an offer is always YES. No exceptions. All situations. It is always better to make an offer.

Well... maybe in mobility cases, but even there I would still make an offer that provided ridiculous concessions in return for having the kid move with you. Other parent will of course reject it but it helps with costs.
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Old 10-17-2017, 02:00 PM
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I asked this type of question to my partners lawyer because his ex always asks for mediation but its always on her terms and by her rules. Plus she refused mediation whenever he asked for it at the beginning (and walked out of mediation during the separation). His lawyer said he always encourages mediation for issues that can be resolved and with parties that are close to meeting in the middle.

He continued to say that mediation does not work for parties that are so far apart, unreasonable or simply using it to make their own rules under the umbrella of mediating.

Mediation CAN work. I bet it is included in agreements as a way to alleviate the issues on the court docket. Sadly though, there are way too many unreasonable people in family law.

After the first cc I asked the lawyer "still think mediation will work"? He shook his head, puffed out his cheeks and started laughing.
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Old 10-17-2017, 02:07 PM
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Quote:
Originally Posted by billiechic View Post
After 2 final orders and 2 mediation agreements, which he is NOT following, he wants to go back to mediation again.
He continues to create conflict, in fact took the phine from our daughter last night and threatened me "if you don't agree to mediation....."
I don't want to go to mediation . He was abusive, controlling and 2 times already mediation has failed. Sure we came to agreements, but he has not followed half of it. I don't see the point in allowing him yo continue to intimidate me through the legal/mediation process. It's been 8 years!

I do not feel safe. He constantly texts or emails Me, threatens me and is hounding our daughter. I need to stop this now

Here's my question: can I make him an offer instead of mediation? We have that mediation must be done before filing a motion but we have done that twice already.
I feel safer making an offer and if we can't reach agreement I can file a motion.
What issues does he want to mediate about? Tell him to send you an offer with what he wants, and you'll decide how to proceed after reading it.

If your court order says mediation before motions, then I think you'd better follow that, even if it's just one mediation session to confirm that he's going to be a bully as he has been in the past.

But why would you file a motion? It sounds like he's the one who wants to initiate something.

Correct sequence of events:
  1. get his offer to settle to find out what he wants changed about the previous agreements/orders - if he doesn't send one, ignore him. If he whines about mediation, remind him you're waiting for his offer first.
  2. send him your return offer or tell him you don't want to change from the previous agreements/orders - if he doesn't respond, ignore him. if he whines about mediation, remind him you're waiting for his response to your offer first, or ask him to schedule it
  3. attend one mediation session - if he is unreasonable or it looks in any way that it's headed the same way as previous mediations, tell him he's not mediating, he's being a bully, and court will be necessary, then wait for him to make a motion
  4. attend court - tell the judge you tried offers, you tried mediation again but he was intimidating and unreasonable again, it is him who is not obeying previous orders, and you don't feel they should be changed simply because he doesn't like obeying them, here your honour, see this document trail of his threatening emails and texts, etc
But if your order says mediation first, you'd better try, or your ex will just have extra ammunition about you not following the order.
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Old 10-17-2017, 02:17 PM
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Quote:
Originally Posted by Janus View Post
I'm not convinced that the "mediation before motion" clauses are actually enforceable. You cannot contract yourself out of the right to go to the courts.
They are not enforceable. Only the "arbitration" ones can be. I posted about this a while back (years ago). You can find it on the site and the case law that the courts rely upon.

The only "orderable" mediation is CC/SC as outlined in the FLR.
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Old 10-17-2017, 05:29 PM
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Quote:
Originally Posted by Rioe View Post
What issues does he want to mediate about? Tell him to send you an offer with what he wants, and you'll decide how to proceed after reading it.

If your court order says mediation before motions, then I think you'd better follow that, even if it's just one mediation session to confirm that he's going to be a bully as he has been in the past.

But why would you file a motion? It sounds like he's the one who wants to initiate something.

Correct sequence of events:
  1. get his offer to settle to find out what he wants changed about the previous agreements/orders - if he doesn't send one, ignore him. If he whines about mediation, remind him you're waiting for his offer first.
  2. send him your return offer or tell him you don't want to change from the previous agreements/orders - if he doesn't respond, ignore him. if he whines about mediation, remind him you're waiting for his response to your offer first, or ask him to schedule it
  3. attend one mediation session - if he is unreasonable or it looks in any way that it's headed the same way as previous mediations, tell him he's not mediating, he's being a bully, and court will be necessary, then wait for him to make a motion
  4. attend court - tell the judge you tried offers, you tried mediation again but he was intimidating and unreasonable again, it is him who is not obeying previous orders, and you don't feel they should be changed simply because he doesn't like obeying them, here your honour, see this document trail of his threatening emails and texts, etc
But if your order says mediation first, you'd better try, or your ex will just have extra ammunition about you not following the order.
Thanks. Yes that makes it clear. We had arranged mediation back in the spring to address issues and he declined then.

There are things I would like changed and clarified. Due to his continued harassment I want family wizard used and clarification around a few other things such as parallel parenting and what is permissible there.

I have requested over and over he send me an offer and all he sends is an email with his opinion about what he wants changed and his reasoning is because I am selfish or I am not doing things his way. He threatens court over and over, and the only thing he wants changed is a reduction in child support because I have a business I work part time (on top of a full time job). He keeps accusing me of hiding money and ripping off the government, even though I gave him my full income tax and it is all claimed there. I'm willing to negotiate, but will NOT sit through bullying in mediation

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Old 10-17-2017, 07:31 PM
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Quote:
Most agreements say mediation before court.
Most do not; it is a wishy-washy clause. If people are being reasonable, they will negotiate (with or without a mediator) and regardless of having the clause in. If they are not being reasonable, they will show up at mediation, display avian gymnastics to their former spouse then promptly walk out with the mediation session ended roughly one minute in.
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