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  #1  
Old 05-12-2012, 09:00 PM
momforever1956 momforever1956 is offline
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Default Why court?

I have just finished my 3 year struggle to finalize all kinds of issues related to my divorce. I agreed to mediation/arbitration and it was completed in 4 hours.
Why aren't more cases handled this way? It was truly a good experience for me. The facts were presented, the truth was told. I have to mention that because I was truthful and with the 3rd question the arbitrator asked me, it was to my detriment financially, for me it was easy sailing from then on.
I didn't get all that I had requested in my mediation brief, but ultimately was given a fair deal and that is what I had prayed for.
I am able to work and have as much income as I can generate and it will not effect my SS for 5 years and then it will be reviewed. Is this common?
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Old 05-12-2012, 09:16 PM
motherbear4 motherbear4 is offline
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[
I am able to work and have as much income as I can generate and it will not effect my SS for 5 years and then it will be reviewed. Is this common?[/QUOTE]


I don't know how common it is, but I am confident in saying that I think think it is quite common. My separation agreement allowed of SS for 4 - 10 yrs with a review after 4. We contacted the mediator listed in our agreement, provided the necessary documents and mediated a fair time frame for it to come to an end, which will be in December 2013. A new agreement pertaining to SS only was drawn up by the mediator, reviewed and approved by our lawyers and it was done. Yes, it is refreshing that sometimes some of the BS we all go through can be sorted out relatively amicably
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Old 05-12-2012, 09:30 PM
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Tayken Tayken is offline
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Originally Posted by momforever1956 View Post
I have just finished my 3 year struggle to finalize all kinds of issues related to my divorce. I agreed to mediation/arbitration and it was completed in 4 hours.
The simple answer... Lots of people run to court screaming bloody murder because they want "justice" not settlement. These are the people that for some reason feel that they have been wronged by the other party and that the court really cares and will do something about it. The reality is for a lot of people, their emotionalism runs too high. They base all their facts on "emotional reasons".

They want everyone to know how bad the other litigant is... They expect the court to serve justice... Not fair and balanced settlements. They throw as much mud as possible. Complain about what movies the other parent watches with children thinking it is relevant.

Most litigants don't understand the concept of "relevance" before the court. Who cut the child's nails, that you think the other parent is going to hurt the children, all your fears anxieties and wishful thinking don't matter to the court. Decisions are based on COGENT and RELEVANT EVIDENCE. (Yes, I say this a lot in my posts but, it is the biggest factor in what drives long drawn out family law litigations.)

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Originally Posted by momforever1956 View Post
Why aren't more cases handled this way?
Because people go to court looking often to punish the other party in the matter. They actually think that their concerns are so unique to them that they have never been heard before and that a judge will be so upset that they will lecture the other party. The look to going to court to tell the other party they are all bad and the are the "all good" party. That they were a horrible partner (spouse) and that they are evil and horrible people.

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Originally Posted by momforever1956 View Post
It was truly a good experience for me. The facts were presented, the truth was told. I have to mention that because I was truthful and with the 3rd question the arbitrator asked me, it was to my detriment financially, for me it was easy sailing from then on.
I wish more people who went through a mediated process came to the site and posted comments like this more often. There has to be better court services for proper mediation... Conferences are not mediation. They are technical hoopla for getting to a motion or trial.

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Originally Posted by momforever1956 View Post
I didn't get all that I had requested in my mediation brief, but ultimately was given a fair deal and that is what I had prayed for.
Mediation is always the best way to go. Even if both parties have lawyers. A good mediator will tell it as it is and defunk the BS that lawyers often sell to their clients.

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Originally Posted by momforever1956 View Post
I am able to work and have as much income as I can generate and it will not effect my SS for 5 years and then it will be reviewed. Is this common?
No this is not common per say. It is common if you were not working for a significant time period and you need to retrain. If you have reached a final agreement then there isn't much that the other party can do to disrupt the agreement. Things marked as "FINAL" are hard to change and require a "material change in circumstance" for them to be opened up.

Glad to hear a mediated solution worked for you.

Good Luck!
Tayken
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Old 05-12-2012, 11:02 PM
momforever1956 momforever1956 is offline
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We had signed a mediation/arbitration agreement, which meant if we were stuck on any point at any time, it would go to arbitration. I insisted on this as my x is a difficult personality and I was afraid as he had done in the past when we went for counselling, if he heard anything he didn't like, he would pick up and walk out.
I had submitted my brief a week before the med/arb date and he submitted his the day before. He knew my position before he wrote his brief, the only problem being, mine was based on fact and proof and his based on anger. It is interesting to note that his brief suggested me owing him a lot of money in retro support and in property, ( I suspect his lawyer positioned it like that to lure him to sign the med/ arb agreement) In fact he owed me.
I admit that all along I have been emotionally charged as I was treated unfairly by him , but to get back at him at any costs and PROVING myself in a public forum would be immature. Ohh you can get justice without appearing before a judge. Just be honest and let the proof speak for itself. It is an amazing feeling walking out after 4 hours feeling justice has been served, the truth prevailing and not an ounce of anger or emotion was left except relief.
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Old 05-13-2012, 09:23 PM
kevindell kevindell is offline
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Originally Posted by Tayken View Post
The simple answer... Lots of people run to court screaming bloody murder because they want "justice" not settlement...
Fair enough. There is a flip side. I have been open to mediation and we did it. There was also a big push on by the judge to mediate everything to save time and money.

Now I am a position where I am being asked why I was not more forceful about going before a judge. Duty counsel told me that when I go before the judge they are going to ask why I did not fight harder, earlier. I found out that the cops were supposed to report my STBX to CAS. Cause they did not the onus is on me to have done it. I thought I had done my part to report to police the threats by a third part they were making to my STBX.

They push mediation but at the end of the day it is an adversarial system with everyone just pushing the problem along to someone else.
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Old 05-14-2012, 09:45 AM
representingself representingself is offline
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They push mediation but at the end of the day it is an adversarial system with everyone just pushing the problem along to someone else.
That statement is entirely untrue.

Mediation is specifically designed reduce conflict and miscommunication. It allows couples to work together to resolve their differences and come to cooperative solutions, as opposed to litigation... which is nothing but adversarial. Mediation puts the decision making power back in the hands of the parents, who know and understand their children....

Quoting Justice Harvey Brownstone...(author of Tug of War)

"How can two parents who love their child allow a total stranger to make crucial decisions about their child's living arrangements, health, education, extracurricular activities, vacation time, and degree of contact with each parent?"
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Old 05-14-2012, 10:01 AM
kevindell kevindell is offline
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"They push mediation but at the end of the day it is an adversarial system with everyone just pushing the problem along to someone else."

Sorry, I should have phrased that better. Mediation is good but it lives in a system that is adversarial. Most people should be in mediation. It is just that some issues, for whatever reason, cannot be solved there.
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Old 05-14-2012, 10:45 AM
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"How can two parents who love their child allow a total stranger to make crucial decisions about their child's living arrangements, health, education, extracurricular activities, vacation time, and degree of contact with each parent?"
One of my favourite quotes from the Honourable Mr. Justice Brownstone in that book but, he does go on to explain the reasons mediated solutions don't work for all couples. In the end it all boils down to "maturity" which he should probably rephrase as "emotional maturity". Balanced expectations and good advice to both parties is often the challenge. In the case in which one of the parties harbours anxiety, fears or worries about the other party and feels that their concerns are valid and that the other party may "trick" them or they will be "forced" to think rationally about the situation... They will often run to the court with a negative advocate solicitor in attempt to "win" in court, will constantly threaten costs, and if they don't succeed at first they will try try again.

The most highly conflicted litigants will often continue their distortion campaign through the professionals, refuse to communicate and in the extreme situations use their professionals to bully you, threaten you and your family and ultimately try to create fear, uncertainty and doubt in you.

What I find amusing is that these "truisms" regarding highly conflicted individuals in matrimonial situations are well known and more than enough books have been written (i.e. High Conflict People in Legal Disputes, Its All Your Fault!) about the problem.

The only thing that conflict creates in a matrimonial dispute is large bills for lawyers and litigants being left with nothing.

Good Luck!
Tayken
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Old 05-14-2012, 11:01 AM
kevindell kevindell is offline
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My mediated solution is a good one. It is virtually what I offered my STBX the day we decided to part. So five months of wasted time in court. The problem now is outside interference/influence that is creating conflict. My STBX is as much a victim as she is the cause of our troubles.
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Old 05-14-2012, 11:19 AM
Pursuinghappiness Pursuinghappiness is offline
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Sorry, I should have phrased that better. Mediation is good but it lives in a system that is adversarial. Most people should be in mediation. It is just that some issues, for whatever reason, cannot be solved there
The system is designed so that lawyers actually get financially rewarded for creating conflict and avoiding mediated agreements. There is no penalty for submitting affidavits to the court which both clients and lawyers know are full of crap.

It is a basically a system where each party is encouraged to be totally extreme...so that the Judge can rule somewhere in the middle of the bullcrap.

While I know there are some good lawyers out there...ie, mine is pretty ethical and good. There are some who basically are aholes and attract similar clients. Until there's some penalization system for dealing with this....I'm not sure why things would get any better. The only remedy to this is when two people are reasonable and manage to mediate things out.

I think it would be very helpful if the M.I.P. session really did a whole section on the cost differences of both contested and mediated divorces. They need to really push it. I suggested such when I wrote back my survey review after my session.
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