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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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  #11  
Old 10-17-2019, 10:05 PM
calvinfive calvinfive is offline
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Originally Posted by Kinso View Post
As I said above, we must be cautious before we assume our personal experiences can be easily transferred to others.
That was exactly my point. Just because a judge told rockscan mediation would fail under those circumstances , it doesn't mean it would. In fact, mutual agreement is the ultimate solution in the majority of the cases. A very low percentage of family law matters actually end up making it to trial. And to that point, good judges actually encourage settlement and amicable out of court ways to settle matters - that's why you see all those small conference rooms alongside the hallways of courts.

The judge residing our matter told us the court was a very bad place to be and fully encouraged us to do mediation. Matter of fact, judges often have training and education in mediation as well, and they do, and have many times in our case successfully what the judge called "mediated" consent orders between us. The courts call it "Settlement conference". Settlement conferences are also private and confidential and nothing stated at a settlement conference can be repeated in trial.

Any lawyer or judge that discourages mediation, truthfully just gets offended and doesn't want to be out of a job and is failing the best interests of children. Mediation is a big thing and way of future and even mandatory now in some states. Parents who come to an agreement between themselves are more likely to follow through with their agreement than if it were to be ordered/forced upon them by a judge.

It can also boil down to who is doing the mediation. In our case, mediation would have failed flat on its face if our mediator was one of those anti-dad anti-shared-parenting "professionals". It's very important to find a GOOD mediator with a high success rate.

Why go to the trouble of all paper work, court, retainer, and stuff when you can schedule 5-6 back to back sessions in a matter of 1 month and maybe half with a mediator, pay a fraction of the price, engage in person amicable discussions with your ex to reach something between yourselves, than to go to court for years, spend thousands of dollars, write affidavits and crap, all to have a stranger decide and maybe even ruin your life ?

Always, always, always try mediation first. You just won't know until you try it. It's like food, you won't know what it taste like until you try it. Rockscan may think the food tastes bad based on what she has heard from her guardian angel, but she herself has never tried it .
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  #12  
Old 10-17-2019, 10:36 PM
Stillbreathing Stillbreathing is offline
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I knew mediation wouldnít work but agreed to it in order to get to arbitration as the judge had been refusing to put us on the trial list so I thought this would be faster. Boy was I wrong! Ex agreed to med/arb then refused to sign the agreement for another 8 months. Then hired a lawyer who stalled for another 6 months. I finally got fed up and forced mediation with the help of the mediator who was also getting fed up with the delays. Mediation happened and ex and his lawyer arrived totally, I mean totally unprepared! Didnít have any mediation brief, no documents whatsoever with them. I forged ahead anyway because I wanted mediation over and done with so we could go to arbitration.
Now they want another mediation session because they are furious I forced mediation through and they know he is going to be slaughtered in arbitration. I said no way. Looks like we will have arbitration in the new year.

I wish I would have followed my own instincts instead of my lawyers advice. Because while he was stalling he was also committing fraud with the assistance of his family. Putting marital assets and millions of dollars in family memberís names, transferring the title of real estate holdings out of his name and into family members names. So now we have to go to real court anyway to have these family members made parties to our litigation so that I can go after their assets ( which are hidden marital assets). Apparently an arbitrator can not make these orders, only a real judge can. Had I known this beforehand I NEVER would have agreed to med/arb!
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  #13  
Old 10-17-2019, 10:46 PM
calvinfive calvinfive is offline
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Originally Posted by Stillbreathing View Post
I knew mediation wouldnít work but agreed to it in order to get to arbitration as the judge had been refusing to put us on the trial list so I thought this would be faster. Boy was I wrong! Ex agreed to med/arb then refused to sign the agreement for another 8 months. Then hired a lawyer who stalled for another 6 months. I finally got fed up and forced mediation with the help of the mediator who was also getting fed up with the delays. Mediation happened and ex and his lawyer arrived totally, I mean totally unprepared! Didnít have any mediation brief, no documents whatsoever with them. I forged ahead anyway because I wanted mediation over and done with so we could go to arbitration.
Now they want another mediation session because they are furious I forced mediation through and they know he is going to be slaughtered in arbitration. I said no way. Looks like we will have arbitration in the new year.

I wish I would have followed my own instincts instead of my lawyers advice. Because while he was stalling he was also committing fraud with the assistance of his family. Putting marital assets and millions of dollars in family memberís names, transferring the title of real estate holdings out of his name and into family members names. So now we have to go to real court anyway to have these family members made parties to our litigation so that I can go after their assets ( which are hidden marital assets). Apparently an arbitrator can not make these orders, only a real judge can. Had I known this beforehand I NEVER would have agreed to med/arb!

Meidation and Arbitiration are completely different. You should also not be going into mediation "just to" get it "done and over with" to move forward with arbitiration.

Also, why were lawyers and "documents" present in mediation? Ex and I just attended with some clothes. on.

A judge refusing to put you on the trial list is a good sign that you should reach an agreement with your ex.
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  #14  
Old 10-18-2019, 09:45 AM
Stillbreathing Stillbreathing is offline
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You are supposed to prepare a mediation brief which you give to both the mediator(ours is an experienced family lawyer as well as mediator/arbitrator) and the opposing party a few days prior to mediation. The mediator asked for this and set deadlines for when they were due! This is so that both parties and the mediator have an idea of the other partyís position and have a starting point from which to begin mediation.

By my ex not preparing a mediation brief the whole process became prejudiced against me as he had my brief with my position and I had no idea what his position was. The mediator did rule later in a motion that my ex had acted deliberately and in bad faith for this as well as stalling and putting all of his assets in other family members names.

The reason the judge wouldnít put us on the trial list is because of my exís lawyerís stall and delay tactics. When my lawyer estimated trial would last 4-5 days and we would call 4 witnesses, his lawyer said they needed 26 or more days for trial and had 17 witnesses to call.

They already stalled mediation for a year and a half when itís supposed to take place within a month or two of signing the agreement. We had a date scheduled which they asked to adjourn to gather more financial evidence ( this was granted). However three months later they hadnít even started gathering this extra information so I called bullshit and the mediator agreed with me. I asked for another date to be set and it was. They tried to wiggle out of that one too right up until the day before but it didnít work. The mediator would have none of it.

I showed up at mediation well prepared and ready to mediate my ex did not. He has been acting in bad faith throughout our litigation which finally, the mediator saw through and attributed to him in full capacity and not his brain injury!

I knew from the get go that mediation would be a waste of time because I knew I would come to the table willing and ready to mediate and my ex would not. I was proved correct. He is panicking now that we are headed to arbitration and he is no longer able to stall his way out of it. We filed a motion after the mediation and I won plus I won costs.

Going into my eighth years of litigation with no issues at all settled. I have sent multiple offers including severable offers to settle. All have been ignored. We are finally headed towards a forced resolution but only because Iím pushing. Eight years of litigation is enough already. If it were up to my ex he would never settle but instead keep dragging things on forever.

Last edited by Stillbreathing; 10-18-2019 at 09:47 AM.
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  #15  
Old 10-18-2019, 10:08 AM
rockscan rockscan is offline
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My comment about the judge was to point out that even though your agreement says mediation, if it wonít work a judge will not necessarily get angry. They can see the conduct of the parties in the materials and responses to items.

For instance, you have a recipient asking for disclosure repeatedly and the payor refuses. The recipient goes right to filing a motion instead of mediation. A judge wonít get upset that mediation didnít happen as they can see that one party is being unreasonable and an order is required.

My husbandís ex tried to paint him as unreasonable for not attending mediation. The judge pointed out the flaw in her argument.
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  #16  
Old 10-18-2019, 10:08 AM
Mother Mother is offline
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I've never heard of any brief(s) or documents required for mediation. Could you please post a link with the info regarding this? What kind or documents are required?
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  #17  
Old 10-18-2019, 10:15 AM
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finally.... arbitration
hope you get through this soon

best wishes
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  #18  
Old 10-18-2019, 11:08 AM
Kinso Kinso is offline
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Mediation isnít a regulated process like court. The need for briefs would be set by the mediator. Youíll have to ask them.
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  #19  
Old 10-18-2019, 11:20 AM
Stillbreathing Stillbreathing is offline
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Mother, I can only speak to my experience with med/arb in which the mediator/arbitrator is himself an experienced family law lawyer. Perhaps that is why the process is mimicking the court procedure with documents required for mediation and any motions. I do realize that people can also choose to have a mediator who is not a lawyer but a lay person. Perhaps in that case the procedure is different and more informal.

My lawyer also told me that with arbitration both parties can choose options as to what it will look like. One option is to do it in a trial format with witnesses who are cross examined. You can also do it only using affidavits with exhibits like a motion. You can also set up any other type of format as long as the other party agrees. My lawyer said that if you do it in trial format and disagree you can appeal on three grounds: error in facts, error in law or an error in a mix of facts and law. If you choose to proceed with a format other than trial like, you can only appeal based on an error in law.

I was initially told the mediator/arbitrator could make the same orders as a judge. Apparently this is not correct, especially as it pertains to a dishonest, bath faith litigant who has hidden assets ( including those that are legally mine) by putting them in his family members names. Only a real judge can add parties to our litigation against their will, thereby holding them personally liable for fraudulent conveyance. Had I known my ex and his family were committing fraud prior to mediation I would NEVER have agreed to abandon the court process in favour of med/arb.

When both parties agree to med/arb it is assumed they are doing so with clean hands and genuinely wish to resolve their issues. The process is not the best option if one of the parties is deceitful. However, because I signed the med/arb agreement I have no choice but to see it through. If I refuse to participate it will go ahead without me. Same goes for my ex. His ability to stall and delay has been curtailed. We are going to arbitration no matter how many bizarre last minute excuses his lawyer comes up with.

Once I get my settlement award, if his family members refuse to pay I can then alert the RCMP and have them as well as my ex charged criminally. I can then also proceed with a lawsuit against his family members.Should his family members refuse to co-operate with releasing the funds for my settlement award they will personally be liable as well as risk serious jail time as the amount of money owing will be significant ( we are not talking a few hundred thousand here).
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  #20  
Old 10-18-2019, 12:14 PM
iona6656 iona6656 is offline
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Quote:
Originally Posted by Kinso View Post
Mediation isnít a regulated process like court. The need for briefs would be set by the mediator. Youíll have to ask them.
Is it not the case that good mediators always ask for briefs? I've never gone to a mediation without one.
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