Ottawa Divorce .com Forums


User CP

New posts

Advertising

  Ottawa Divorce .com Forums > Main Category > Divorce & Family Law

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

Closed Thread
 
LinkBack Thread Tools
  #1 (permalink)  
Old 03-04-2013, 07:20 PM
NBDad's Avatar
Senior Member
 
Join Date: Dec 2009
Location: New Brunswick
Posts: 2,734
NBDad is on a distinguished road
Default Wording for use of a mediator

Just wondering if anyone has an order with a clause for the use of a mediator and if they would mind sharing.

My ex is stupidly high conflict, so I need it to be as specific as possible.

/vent

We had an appearance before the judge, and her lawyer was successful in getting his parental capacity assessment ordered and the safety net clause that was previously agreed to, and subsequently reneged upon by his client, removed.

The judge decided to recommend we use a "mediator, but not really a mediator, more of an arbitrator" to bring issues up as they arose.

/facepalm

So now I get to craft a clause to use a method that will take weeks if not months to get up and running, will cost me more $$ (that she won't contribute to) and she won't bother following anyway.

/endvent

Blah.

Anyway, if anyone has suggestions re: wording I'd appreciate some examples. I'll be a good little boy and play ball, and let the ex's actions, or lack thereof, speak for themselves.
  #2 (permalink)  
Old 03-04-2013, 09:00 PM
Senior Member
 
Join Date: Feb 2012
Posts: 353
SingingDad is on a distinguished road
Default

Working on a similar section myself (this similar to what I am proposing):

1) The Parents appoint [Person's name], who is mediator/arbitrator qualified, to act as Mediator and Arbitrator with respect to [whatever issues are necessary].

2) If mutual agreement is not reached in matters that require joint consent either parent may request to engage the Mediator/Arbitrator to help settle the impasse.

3) Should the parents fail to reach an agreement through mediation, or should one of the parents refuse to engage in mediation, the Arbitration phase shall start. The Mediator/Arbitrator shall have the authority to make a final and binding decision regarding any and all issues set before them by the parents.

4) The costs of the Mediator/Arbitrator shall initially be shared equally by the Parents. The Mediator/Arbitrator shall have the authority to require one party to pay to the other all or a portion of the costs so paid at the end of the Arbitration phase, in the sole and absolute discretion of the Mediator/Arbitrator.
  #3 (permalink)  
Old 03-04-2013, 09:01 PM
Senior Member
 
Join Date: Feb 2013
Posts: 286
HappyDays is on a distinguished road
Default

"In the event that the parties cannot agree regarding a major decision regarding the children best interests, they should seek a professional proficient in mediation/arbitration to assist them in resolving their differences prior to seeking litigation options."
  #4 (permalink)  
Old 03-04-2013, 09:27 PM
Senior Member
 
Join Date: Feb 2012
Posts: 353
SingingDad is on a distinguished road
Default

You could also add another section:

5) Once engaged the only way to end either mediation or arbitration is by mutual consent, and should one party leave either phase the process can be completed by the other parent and the Mediator/Arbitrator.
  #5 (permalink)  
Old 03-04-2013, 09:27 PM
Senior Member
 
Join Date: May 2009
Posts: 2,470
dinkyface will become famous soon enough
Default

- each party will pay their own initial retainer
- decide now who will do the mediation. Interview them first. Make sure to check if there is any professional relationship between this person and your ex's lawyer. Remember that med/arbs benefit from referrals from family lawyers, so there is easily some degree of conflict of interest (be nice to my client, and I'll refer more clients to you)
- I suggest you choose someone with a solid legal background, and not a 'social worker'
- decide if you will permit separate meetings/communication or does it all occur 3-way
- open or closed? i.e. can med/arb discussions be used in subsequent litigation? Can the med/arb write a report that can be used in court (may be useful for unresolved issues)
- put some limit on the number of occasions or issues to be dealt with each year
- consider putting a start/end time frame on the service i.e. intake process and retainer to be completed/paid within 6 weeks of the date of this agreement; med/arb to be used for 3 years.
  #6 (permalink)  
Old 03-04-2013, 10:15 PM
NBDad's Avatar
Senior Member
 
Join Date: Dec 2009
Location: New Brunswick
Posts: 2,734
NBDad is on a distinguished road
Default

Quote:
"In the event that the parties cannot agree regarding a major decision regarding the children best interests, they should seek a professional proficient in mediation/arbitration to assist them in resolving their differences prior to seeking litigation options."
FAR too vague.

Here's what her lawyer is currently suggesting:

Quote:
Should either party find that the other party is failing to adhere to the terms of this order, they shall first attempt to resolve the issue before a mediator and should mediation be unsuccessful they may apply to the court to review the matter.
That's it. No info on how we select a mediator, who is responsible to PAY the mediator, or whether the negotiations can be used in proceedings.

Then add to that my ex is a SAHM who refuses to work, refuses to provide financial disclosure, cries poor me I can't pay CS because I'm a SAHM...yet can blow 12000 on a lawyer and to pay for a parenting assessment.

Vague clauses are a nightmare with my ex when she decides she isn't going to play nicely. She fought me tooth and nail over a similar clause for TWO years. I only recently got it fixed.

Dinky..I like your suggestions immensely. Further research is needed into how things work here in NB. Her lawyer is all gung ho to move forward now...I don't think he's very happy that I called him out in front of the judge for essentially doing nothing for an entire month.

First I ask that it be dismissed. Judge refused No shocker there. I then requested that we impose strict timelines on completion given the prior issues with delays, and the judge agreed.

The lawyer has to have the draft order ready by tomorrow, and the letter to the crown attorney (to get copies of the info on the DSD reports) before Friday. (AND 14 days to agree to an assessor. He wants some cheap dude an hour away...I'm leaning towards the pre-imminent guy in town, who costs twice as much).

I did my homework, CanLii research seems to favor my guy, he's not as biased, has been declared an "expert witness" a number of times, and doesn't seem to get his reports overturned as often as this other guy. (and when I spoke with him, he gave me a far more accurate estimate of the time it would take to properly compile a report)

I got my ass handed to me today. I didn't want the kids to have to go through yet ANOTHER interview, nor did I want her to have free reign with the expanded access without some serious safety nets in place. I'm retaining a lawyer before end of week. Tried the self rep route, and it's getting over my head, so I'm bringing out the big guns.

Sucks, since it comes out of the kids college fund that my father established, and I was seriously hoping to avoid that, but I'm not messing around with this much further on my own.
  #7 (permalink)  
Old 03-04-2013, 10:25 PM
Senior Member
 
Join Date: Aug 2009
Location: Toronto
Posts: 5,448
Mess is a jewel in the roughMess is a jewel in the roughMess is a jewel in the roughMess is a jewel in the rough
Default

I have a clause like this and I regret it. My ex treats it like a magic wand that allows her to disregard the court order, she just keeps demanding mediation every year over every little thing.

My postition is, we have a court order, we adhere. Mediation is for either small parenting disagreements, or an alternative to opening up the court order altogether. To go to mediation requires sufficient cause that would reopen the separation agreement and the court order.

Honestly it just ends up costing more because she keeps thinking the possibility of mediation means she doesn't have to adhere to the court order.
  #8 (permalink)  
Old 03-04-2013, 10:46 PM
NBDad's Avatar
Senior Member
 
Join Date: Dec 2009
Location: New Brunswick
Posts: 2,734
NBDad is on a distinguished road
Default

In my case she already disregards the order whenever the hell she feels like it. I overlook a lot of small stuff, to be honest it's just not worth the headache to fight about it, so I pick my battles where I can.

For reference..here is the original clause that was removed:

Quote:
Should the Respondent fail to meet any of the obligations stated in paragraphs (a), (b), and (c), supra, on three occasions during the school year from the first day of school in September until the last day of school in June, and subject to unforeseeable circumstances such as inclement weather as determined by the school district or police, road conditions, illnesses and medical emergencies, the parties shall automatically revert to the access schedule contained in the Order dated XXXX-XX-XX
I like it a LOT better, but the judge's opinion was that it gave me too much power and set her up for failure. The paragraphs referenced are in relation to getting them to school on time, picking them up on time, feeding them appropriately, and making sure they are dressed appropriately. As pathetic as it sounds that we need those in there, we had HUGE issues with this before, to the point one of the children failed due to the number of absences and amount of moves that his mother went through.

I'd rather the kids NOT be sent to school with a lunch that consists of two pieces of bread with a single cheese slice in the middle again. No snack, no drink, nothing else.

We've been operating under the new schedule for a month on good faith, and already the kids have missed breakfast, been sent to school with pants that are two sizes too small and that have huge holes in the knees. In spring/summer I wouldn't be as concerned, but this is winter in Atlantic Canada.

Gotta have something to keep her honest, and the judge suggested a "mediator" of some kind. Ergo, until she screws up and proves the clause useless so I can fix it properly, I have to be a good little drone and do as I'm told. I don't like it, it's useless and fluffy and is going to cause problems...but what the hell do I know right
Closed Thread


Currently Active Users Viewing This Thread: 1 (0 members and 1 guests)
 
Thread Tools

Posting Rules
You may not post new threads
You may not post replies
You may not post attachments
You may not edit your posts

BB code is On
Smilies are On
[IMG] code is On
HTML code is On
Trackbacks are On
Pingbacks are On
Refbacks are On


Similar Threads
Thread Thread Starter Forum Replies Last Post
Our former mediator is now consulting to my stbx - is this ethical/legal mf1iaat Divorce & Family Law 22 11-11-2012 01:49 PM
Wording to stop access change due to move billm Divorce & Family Law 24 10-21-2012 07:39 PM
Mediator vs Lawyer Fees bomar Financial Issues 3 07-02-2011 01:18 AM
Looking for a no-nonsense mediator in Brampton/Mississauga! waron2fronts General Chat 1 01-28-2010 01:01 PM
Role of Mediator serrona Divorce & Family Law 1 11-25-2006 10:47 PM


All times are GMT -4. The time now is 06:00 PM.