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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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  #1 (permalink)  
Old 10-21-2015, 08:09 AM
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Default Refusing to go to mediation

We are 5 years divorced. It was a high-conflict divorce and continues to be. There have been a number of issues that were mediated and litigated during the divorce - all of which turned out in my favor. He has been ordered to pay my costs more than once.

It is pretty obvious to me and anyone that has had to deal with him that he has some sort of personality disorder and/or something going on cognitively. (He's had a couple of serious head injuries.) A lot of his actions have not made sense, and his emails often don't make sense either. I have made every effort to remain business like and ignore his constant efforts to antagonize me and to be controlling. I think I have been successful here in staying on the high road.

I worry about my kids (3 of them who are 14, 12, and 9), especially my oldest who is showing a lot of things that make me convinced he is working on alienating him the most.

Anyhow we have been having a financial disagreement over the last few months that is going nowhere and I am out of pocket a few thousand dollars that he owes me. He delayed and confused this issue over and over and it is clear to me he has no interest in figuring this out as he knows he owes me.

I asked him to go to mediation as in our divorce agreement. I gave him a 2 week deadline in which to respond to me request and he outright said no because he felt that he was just right and there is nothing to mediate. At that point I went to my lawyer who wrote him, and he told him the same thing. He didn't say who would be representing him because he is so fully convinced he doesn't need it.

Clearly now this is going to go further. He already owes me a significant amount of money (mostly due to our son being an elite athlete...a section 7 expense) and now I have legal costs. This is the first time I've been in this position since our divorce was granted. The clauses in our agreement about dispute resolution are clear - we go to mediation after 30 days of disagreement, and arbitration if needed. It seems obvious to me yet he is refusing to follow procedure (a common theme with him).

Am I likely to get costs? Part of me just is concerned about the money he owes me, but I also want him to get the message that if he is going to continue escalating in his combativeness it is going to cost him. Of course it costs him (and the kids!) in other ways too but he is too vain to see that. I just don't want to end up going through this with every single disagreement when a few hours with a mediator would take care of it.
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Old 10-22-2015, 12:21 AM
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What is your question? Who has the kids? What is the arrangements? You only talk about money.

And he doesn't have to mediate but in some cases refusing to mediate may go vs the person who refuses it. In your case it seems a little complicated.
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Old 10-22-2015, 07:27 AM
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Sorry - I will clarify:

We have equal access - they switch houses weekly.

My question is not really about money. It is about process. It is about refusing to participate in a dispute resolution process that is part of the divorce order. Specifically, how likely am I to be awarded costs? I truly believe that this could have been resolved with a couple of hours with a mediator.
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Old 10-22-2015, 09:18 AM
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The likelihood for receiving costs is generally determined by the reasonableness of the request.

You are looking for thousands of $$ in s7 because you state your child is an elite athlete. The circumstances (incomes, history of involvement, offers to settle etc.) will dictate whether a party receives costs more than attending mediation.
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Old 10-22-2015, 09:24 AM
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Quote:
Originally Posted by roundtwo View Post
We are 5 years divorced. It was a high-conflict divorce and continues to be. There have been a number of issues that were mediated and litigated during the divorce - all of which turned out in my favor. He has been ordered to pay my costs more than once.
Family Law isn't a "win / lose" battle. The only "favour" the court truly considers is that of the children involved aka "best interests".

Quote:
Originally Posted by roundtwo View Post
It is pretty obvious to me and anyone that has had to deal with him that he has some sort of personality disorder and/or something going on cognitively. (He's had a couple of serious head injuries.)
Well, considering that the person in question has had some serious head related injuries it cannot be a "personality disorder". The person in question may have a functioning issue after a traumatic brain injury (TBI) but, it more than likely would not get a diagnosis of a axis II disorder of the personality. It would be some other classification relating to the TBI.

Also, there is no diagnosis for "idiot", "stupid", "angry" or "asshole". It sounds like you are dealing with someone in that category and not someone whom has a axis II disorder.

You should heed Mr. William Eddy's warning to not call someone "personality disordered". It won't work in your favour if you do this in mediation, arbitration or in court.

Quote:
Originally Posted by roundtwo View Post
A lot of his actions have not made sense, and his emails often don't make sense either. I have made every effort to remain business like and ignore his constant efforts to antagonize me and to be controlling.
FYI: "Controlling" people often make sense. That is how they "control" people. Again, I caution you on how you use this word. If you said to a judge the person makes no sense and is "controlling" it is like saying someone is manipulative but stupid. Also, judges often view those who are "controlled" as the weaker party in the matter. Considering you have bosted success in your matter and that the other party makes no sense (is stupid?) it is hard to convince many that this person is also "controlling" (conniving, clever, manipulative) as they have failed at being "controlling". Again, it may all just boil down to this person being stupid.

Quote:
Originally Posted by roundtwo View Post
I think I have been successful here in staying on the high road.
Stay there. Don't focus on their potential cognitive dysfunction resulting from a TBI. Focus on the children.

Quote:
Originally Posted by roundtwo View Post
I worry about my kids (3 of them who are 14, 12, and 9), especially my oldest who is showing a lot of things that make me convinced he is working on alienating him the most.
Again, careful with the buzz words. "Alienation" is very difficult to prove. Also, children who are 14 may be acting out in a variety of different ways. To project blame at the other parent may not be well placed. It may be how the both of you (mom and dad) are interacting that is causing whatever is going on.

Quote:
Originally Posted by roundtwo View Post
Anyhow we have been having a financial disagreement over the last few months that is going nowhere and I am out of pocket a few thousand dollars that he owes me.
I am going to assume that a "few thousand" is <$5000.

Quote:
Originally Posted by roundtwo View Post
He delayed and confused this issue over and over and it is clear to me he has no interest in figuring this out as he knows he owes me.
If you have been to court and mediation several times, you have had "success" and your matter was indeed "high conflict" then all the provisions for financial disputes (support, child support and section 7 expenses) should have been incorporated into your final court order and the FRO (or similar agency) should be able to collect what is owed to you. No?

Quote:
Originally Posted by roundtwo View Post
I asked him to go to mediation as in our divorce agreement. I gave him a 2 week deadline in which to respond to me request and he outright said no because he felt that he was just right and there is nothing to mediate.
Mediation clauses are (1) unenforceable and (2) a waste of time. People still put them into final agreements and I have no idea why lawyers bother advising clients to even put them in these days. The only clause that can be enforced is arbitration.

Quote:
Originally Posted by roundtwo View Post
At that point I went to my lawyer who wrote him, and he told him the same thing. He didn't say who would be representing him because he is so fully convinced he doesn't need it.
Better for you if the other party is unrepresented. Why do you care?

Quote:
Originally Posted by roundtwo View Post
Clearly now this is going to go further. He already owes me a significant amount of money (mostly due to our son being an elite athlete...a section 7 expense) and now I have legal costs.
You stated earlier it was a "few thousand" that you are owed and now you are stating "significant amount". What is it? Few thousand (<5000) or "significant amount" (>10,000)?

Also, what is your definition of "elite athlete"? This really truly does matter in determining S.7 expenses.

Quote:
Originally Posted by roundtwo View Post
This is the first time I've been in this position since our divorce was granted. The clauses in our agreement about dispute resolution are clear - we go to mediation after 30 days of disagreement, and arbitration if needed.
Again, your lawyer should confirm and provide you the very common case law that states a court cannot force someone to attend mediation. Your lawyer should be on the very tried and true path to getting setup to get a court to order ARBITRATION.

This is simple:

1. Send letter recommending 3 mediators giving other party 30 days to choose one. Send resumes and contracts for each arbitrator to other party.
2. Advise client that after 30 days you will be going for a motion to have one of the three mediators selected by a judge.
3. After 30 days start the motion.
4. Mark all letters "with prejudice".
5. Send 3 offers to settle one for each arbitrator.
6. Go to motion. Collect costs.

Quote:
Originally Posted by roundtwo View Post
It seems obvious to me yet he is refusing to follow procedure (a common theme with him).
Probably because the money is so low that he knows you won't go to court because the cost to get the money is too high and there is no enforcement clause for s.7. Unless you are seeking >25,000 I wouldn't recommend you bother.

Quote:
Originally Posted by roundtwo View Post
Am I likely to get costs?
Up to this point in the matter no. Generally courts only award costs for offers to settle and court related matters. Negotiations outside the scope of the court often do not get awarded unless they are proper offers to settle and the court ordered on that matter.

I wouldn't waste much time sending letters. You won't get your money back.

Quote:
Originally Posted by roundtwo View Post
Part of me just is concerned about the money he owes me, but I also want him to get the message that if he is going to continue escalating in his combativeness it is going to cost him.
Arbitrators are known to be very "weak" when it comes to ordering costs. From what I have seen they generally are 80% less than what courts order and courts often trim costs significantly. So, if you are seeking to recoup your costs you are going down the wrong avenue. What you should be seeking is an order for FRO (or similar) to enforce S.7 and for an order that outlines what S.7 is payable, in what proportion and for what activities. You clearly do not have this in your existing agreements/orders.

Quote:
Originally Posted by roundtwo View Post
Of course it costs him (and the kids!) in other ways too but he is too vain to see that. I just don't want to end up going through this with every single disagreement when a few hours with a mediator would take care of it.
Mediator can't order anything. He can show up. Say nothing and sit there and walk out. Mediation is WITHOUT PREJUDICE usually. Many negative advocate lawyers advise their clients to do just this to move things to court faster. My recommendation would be to start the process of going to court to have an arbitrator ordered.

Everyone: Final orders or agreements should be as *FINAL* as possible when it comes to calculating, paying and collecting child support and S.7 expenses. No one should have to go back to arbitration and/or court to determine child support or S.7 unless there is a *MATERIAL CHANGE IN CIRCUMSTANCE*. Make sure your lawyer covers all the bases if you are in a conflicted situation.

Good Luck!
Tayken

Last edited by Tayken; 10-22-2015 at 09:40 AM.
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Old 10-22-2015, 07:31 PM
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Thanks Tayken for your super detailed response. The amount in question is just over 17 grand. He travels to competitions all over NA and will be going to an international one in the spring. It is kind of disheartening to hear that it really isn't worth it for a sum under 25k. To me 17k is a lot to be out of pocket and I worry that for him it sets a precedent that he can just not pay because it won't be worth it to come after him.

I honestly don't know what is driving my ex's behaviour. I keep telling myself that in a sense it doesn't really matter. It is more about his actual actions.

I have a meeting with my lawyer (who isn't the same one who represented me through the separation and divorce) and I will be sure the check about going straight to arbitration since he's already outright refused to go to mediation. Interesting btw what you say about mediation being not binding. I have actually experienced this when we were negotiating parts of our agreement. He'd agreed to a bunch of things (non-financial) and three days later completely reneged.
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Old 10-23-2015, 08:52 AM
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$17k is a lot of money. Depending how much each of you make, it may be determined that such an amount is unsustainable and would create an unreasonable financial burden on both parties.

There is case law to this effect where the costs of s7 expenses, sports in particular, became extremely high.
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Old 10-23-2015, 10:39 AM
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Theres something missing...what does your order say about these costs? I know there have been many instances on here where people have shown case law that goes in favour of the sport or in favour of saying no. If you and your ex knew your child would be playing this level and it was agreed to in the order, he will be hard pressed to prove why he shouldnt pay his share.

All the rest of it (brain injury, alienation, high road) is moot. You need to focus on law. If you won costs on a similar argument before you may be successful again. If it costs you $5000 to recover $20000 youre up $15000 and you could get something enforceable by an agency like FRO or MEP.

Talk to your lawyer and see what they say. But again, depends on what your order says too.
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