Peace Circles

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 A “Circle” for dispute resolution has been around for a very long time; probably centuries, but what is it? and how can it assist in the work of a family dispute resolution professional (as we are now described in the Family Law Act)?

 

I had the honour to attend and participate in a one-day training session with Evelyn Zellerer, Ph.D., of Peace of the Circle, sponsored by the BC Collaborative Roster Society. This process for the resolution of disputes is intriguing and I would like to describe and explain.

 

A “Circle” is made up of two or more individuals who form in a physical circle (perhaps, in a series of chairs) where there is space and no barriers in the middle of the physical circle.

 

There is a “Keeper” who facilitates to “Circle”. As in all dispute resolution processes, there is an “issue” or topic for discussion. In most dispute resolution processes, there is a form of introductions or welcoming. In Circle, the welcoming is intended as a comforting and settling process to allow participants to feel at ease and safe.

 

What is different about Circle is the way in which the discussion between the participants occurs. This discussion is conducted through a “Talking Piece.” The Talking Piece could be any physical item. It could be a heart-shaped stone (like we used), or a Smurf with its tongue out (as we had available to use.) Generally, the Talking Piece is intended to be a physical item unique to the group and “connects” the participants. In a recent Okanagan Collaborative Family Law Group Conference, we used the “Stu Webb* Bobblehead” I received at the IACP Forum in San Antonio, Texas, in October 2013. The Talking Piece could also be a framed photo of a couple’s children or family.

 

The Talking Piece is a tool to allow for discussion on the topic or issue. It is passed from one participant to another so that everyone in the Circle has an opportunity to voice their thoughts on the topic.. The participant with the Talking Piece is the only one who is to speak while they are in possession of the Talking Piece. Those participants in the Circle who do not have possession of the Talking Piece listen to the participant with the Talking Piece until it is each participant’s turn with the Talking Piece. Therefore, If you do not have the Talking Piece, you are listening and not talking.

 

The Talking Piece is passed around the Circle (called a “Round”). There may be more than one Round necessary to fully discuss the topic or issue. The number of Rounds depends on the topic and the will of the participants in the Circle.

Lawyers are particularly familiar with rules and procedure. In Circle, these are called “Guidelines”. Guidelines are created by the participants within the group in the Circle. These Guidelines might include the following:

 

(a)       Respect the Talking Piece;

(b)       Stay in Circle for the time agreed;

(c)       Stay on topic;

(d)       Refrain from interrupting;

(e)       Turn off all cellular telephones;

(f)        Allow the facilitator (the Keeper) to facilitate;

(g)       Stay present and focused;

(h)       Respectful communication.

 

These Guidelines may be “shared”, to indicate all participants agree with particular Guidelines. Guidelines may also be “individual” to indicate the Guideline is important for a particular participant to feel comfortable and safe participating in Circle.

 

Where the issues and topics are complex, as in most family law cases where there are the multiple issues including, children, parenting, family property and debts, distribution of income, there may be multiple Circles and the Guidelines may be different for each Circle. The Guidelines may be customized to suit the needs of the participants for the particular topic or issue for each particular Circle.

 

Once the “process” or format (meaning the topic or issue to be discussed and the Guidelines established) of the dispute has been determined, the Circle is used as the arena for the discussion. Of course, central for any meaningful discussion of the topic or issues is that each participants feels they have the opportunity and has the opportunity to fully express themselves about the topic and what is important to them about the topic. In other words, each participant has the opportunity to express what are their interests, needs, and how they feel about a topic. In very basic terms, each participant has the opportunity to say whatever they feel, need or want to say about the topic. Further, each participant can contribute to the topic for whatever number of Rounds may be selected when the Talking Piece is passed that may be required to achieve the resolution of the content by the group.

 

The Circle is an “organic process” and may begin in one way and may grow and evolve into something quite different than may have been expected at the beginning of the Circle. The Circle provides for the generation of ideas and thoughts on the topic. It encourages deepening and the “unpacking” of those ideas and thoughts as the ‘Talking Piece is passed from participant to participant in the Circle. In doing so, the opportunity for the creation of options from those ideas and thoughts are created and further developed and deepened.

 

As participants express what it important to them or their needs or concerns raised in the Circle, further ideas, thoughts, and options develop. The group has the opportunity to have the discussion on the topic one participant at a time to achieve “consensus” and a resolution.

 

The Circle does not necessarily end at that particular resolution. As family lawyers are well aware, family law matters are complex as the family moves through a transition and evolves and develops and what may not have been a need during the first Circle may arise thereafter suggesting the need for a subsequent Circle or Circles to address new and emerging issues.

 

Do Circles have a place in family law? Well, prior to the introduction of the Family Law Act in 2013, although Mediation, Collaborative practice and Parenting Coordination were being practiced by many family lawyers for a number of years, these processes were not outlined in the Family Relations Act. The Family Law Act, however, defines “family dispute resolution” to mean “a process used by parties to a family law dispute to attempt to resolve one or more of the disputed issues outside court, and include…(c) Mediation, Arbitration, Collaborative Family Law, and other processes, and (d) prescribed processes. Essentially, I would suggest the drafters of the Family Law Act are suggesting that there are dispute resolutions of which we may not be aware and of which we need discover. I would suggest Circle is one of them.

 

*Stu Webb is the founder of Collaborative Practice.

Privacy

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Privacy, your privacy…what is it worth to you? Does anyone consider privacy when they retain a family lawyer to assist with their separation and divorce? Well, sometimes it is considered, but I am going to bet that most times, privacy is not considered at all. The selection of a process through which to address the issues involved in resolving a family law case, is a critical choice to avoid the risk of one’s privacy being violated. Why? How?

 

Some background is necessary. There are two main sources of law used to resolve family law cases. The first is legislation. Legislation is government made law. The Family Law Act and the Divorce Act are examples of legislation. The second source of law is the common or case law.

 

Case, or the “Common”, law is law developed by the Courts interpreting legislation as it applies to the facts of a particular case. Where there is confusion, lack of clarity, or ambiguity over the interpretation or meaning of the legislation (or a section or sections of the legislation), there can be disagreements over the way in which to apply the legislation to the “facts” of the case. These disagreements can lead to disputes. In these situations, assuming the parties and their lawyers are unable to agree, the Courts are asked to interpret and apply the legislation to the facts of a particular case to determine the outcome of the dispute. In other words, the Court grants an Order. The basis of the Order is called “Reasons for Judgment”.

 

These “Reasons for Judgment” are used by lawyers and the Courts to assist in the determination of the outcome of future cases. This is the process through which the law is developed. They provide the support or the “precedent” to assist lawyers and judges determine to outcome of the dispute before them. To find these precedents, lawyers and judges search “reported” cases. These cases can be found on government websites and are available to lawyers and the Courts and anyone who cares to search.

 

In many of these cases, the names of the spouses are included. The names and birth dates of children, what the spouses do for a living, where they work, the city and town that they reside, the background of the relationship and often times the circumstances and events leading to the separation may also be included*, ….disturbing, but true!

 

Case law is a significant part of the development of our laws. There are certainly extremely good reasons for it to continue. It needs to, and will, continue. The question is whether spouses wish to subject each other and their family to this process? Take the time to think about this question in the selection of the process to address your family’s resolution. This is a very important question!

 

The Court process is not the only way in which to resolve a family law matter. There are many Dispute Resolution Processes available to a couple that do not involve the Courts in any way (other than to obtain an uncontested Divorce Order). There are many professionals who have the training to avoid the Court process completely and, therefore, to also avoid the potential violation of a family’s privacy.

 

These Dispute Resolution Processes have potential benefits that go far beyond the retention of privacy of one’s family. Ask me about these process options and how you and your family can benefit from these resolution oriented processes. Resolution oriented professionals are available to assist. Stay strong and find yours!

 

 

* In British Columbia, efforts have been made to attempt to protect the sensitive information, but that protection only goes so far.

 

Mediation/Arbitration and Judicial Settlement Conferences

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Welcome back!

Today’s topic is: How is the Mediation/Arbitration process similar to and different from a Judicial Settlement Conference?

On my website, www.bevchurchillfamilylawyer.com, under ‘Other Settlement Processes’, I discuss the Judicial Settlement Conference process.  In my experience, the Judicial Settlement Conference is, or was, a very useful settlement process.  Granted, this process is only available once a family law dispute is before the Courts, but our Supreme Court Judges worked very hard to assist the couple and their lawyers to resolve their dispute short of a full trial and more often than not, were successful in doing so.

Now, you may have noticed that I used the past tense when I described the Judicial Settlement Conference and may have wondered, why? 

Well, the reason is that there are times when lawyers are not able to get a date for a Judicial Settlement Conference.  Lawyers are told that although it is a useful process, Judicial Settlement Conferences are not given “priority”.  What this means is that although this is a settlement type process, within the Court system and rules, practically speaking, it may not be available.  This may be the case even when the 2 lawyers may have a 2 week trial set and wish to try to resolve the matter through a Judicial Settlement Conference to try to save Court and Judge time by setting a one day Judicial Settlement Conference.  In other words, they may not be given a date.  This is frustrating and true!

The Mediation/Arbitration process offers another settlement process which is similar to the Judicial Settlement Conference, but some may argue, has the potential to be better.  Why?

In the Judicial Settlement Conference, the parties are told by the Judge that although the Judge is able to provide an opinion on the family law dispute, it is a non binding opinion.  This is because that particular Judge will not be the trial Judge. Lawyers and Judges know that this makes perfect sense as the Judicial Settlement Conference is not the trial.  Witnesses are not called to give their evidence and the evidence at the trial may very well be different than the information provided at the Settlement Conference.  This can be very difficult for a non lawyer to understand; aren’t the facts, the facts.  The problem can be that the facts are not the evidence  and each party made see the facts differently and so the Court is called up to “find” the facts based on the evidence.

Further, the opinion of that particular Judge may not be the result the trial Judge’s conclusion or decision following the trial of the family law dispute.

This may be seen as being a logical result for lawyers and the Judge, but consider the client.  The client knows they are going to Court.  The client knows they will be appearing before the Judge and the other lawyer and their spouse.  They may even have to speak in the court room.  The client may expect to get more for all of this stress and anxiety.  This can lead to confusion on the part of the client.  And this is assuming that a date can be obtained for the process.

In the Mediation/Arbitration process, the parties know that the professional,who is the Mediator, will eventually, and if need be, also be the Arbitrator.  The timing of these processes is explained to the parties. It is known that the Mediation will take place first and the Mediator will be working with the parties and their lawyers to facilitate the resolution of the dispute.  If a resolution is achieved, the dispute is settled. A Separation Agreement is prepared and the parties with their lawyers will sign the Separation Agreement. 

From those professionals actively practicing in the Mediation/Arbitration process, it is said that 9 out of 10 Mediation/Arbitrations result in settlement during the Mediation stage.  In these cases, the Arbitration stage is not necessary.

In the event that the matter does not resolve at the Mediation stage, arrangements are made for the Arbitration process, including the scheduling of a Pre-Arbitration meeting, as well as a date for the Arbitration and any other matters that may need to be addressed.

 

Stay tuned for future discussion on the Arbitration process.

February 25, 2013

Family Law Settlements and the “Mediation/Arbitration” Process – Part 2

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Welcome Back!

Last week, I posted Part 1 of Family Law Settlements and the Process known as “Mediation/Arbitration”.  The following is Part 2.

The process known as Mediation/Arbitration is not new to Canada and family law, but it is not well known, or used in B.C.  The process known as Arbitration is not new.  It has been around for years in such areas as labor law.  Arbitration is not widespread in family law; certainly not in the Okanagan.  Generally, Arbitration is a process in which a hearing is conducted involving the couple, their lawyers and the Arbitrator.  The objective is to obtain a final and binding settlement, called an “Award”.  The Award is the decision regarding the family law dispute (More on the Arbitration process in a future Blog.)

The changes to family law, which come into effect on March 18, 2013 with the new Family Law Act, its Regulations as well as the Arbitration Act, will allow for the use of various combinations of Arbitration for the resolution of a family law dispute.

Generally, and very briefly, “Mediation/Arbitration” works like this:

  1. A Mediation/Arbitration Agreement is signed;
  2. A date for Mediation is set in the usual manner and the couple, together with their  lawyers attend and participate in the mediation to work towards a resolution;
  3. If the Mediation settles the family law dispute, great.  A Separation Agreement is prepared and signed and the matter is complete;
  4. However, if the family law dispute is not settled at the Mediation, then arrangements are made for a Pre-Arbitration meeting to discuss the ways in which to streamline and expedite the Arbitration;
  5. A date for Arbitration is set.  This date can usually be set very quickly as the only schedules to be considered are those of the clients, their lawyers and the Arbitrator;
  6. It is also possible to arrange a date for an interim application before the Arbitrator to make a decision on matters that may need to be decided upon prior to the full Arbitration or even prior to the trial date if the matter has been set for trial.

The Mediation/Arbitration process is a very interesting combination of working towards a resolution on an interest based perspective with the same person who would be eventually determining to final result, assuming the Mediation stage of the process is not successful in resolving all outstanding issues.  If there is a ‘fault’ with Mediation, it might be that there is nothing to ensure there is a final resolution.  The Mediation/Arbitration may be the remedy?!

Stay tuned for the next Blog discussion on “Mediation/Arbitration and the once known process of the Judicial Settlement Conference.

 

 

 

Family Law Settlements and the Mediation/Arbitration Process -Part 1

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Welcome to my Blog!  This is new for me, but it is a way to try to outline some of the creative changes to the way in which a “family law dispute” may, and will, be resolved in the coming months and years.

This first topic is:  Family Law Arbitration and the process known as “Mediation/Arbitration” or “Med/Arb”.

In my experience, when a couple go thr0ugh a separation, they want to do the “right thing” in the “right way”. The trouble can be to determine what is the “right” thing and way?

For those of you who have visited my website (www.bevchurchillfamilylawyer.com), you know that one to the ways to resolve a family law dispute is through Mediation.  Mediation is a voluntary process in which a couple work with a Family Law Mediator, either with lawyers or not, to resolve their family law dispute.

If the couple is not able to resolve their family law dispute through the Mediation process, they can be put into the situation of pursuing other processes to resolve their dispute.  Each couple will have their own unique experience in Mediation and whether or not they are able to achieve a settlement.  Many family law dsiputes are resolved during the Mediation: certainly that has been my general experience.  However,…..

Sometimes the question arises: What happens went the Mediaton Processes does not lead to a resolution of the dispute?

Well, this past week, I completed the requirements to be a Family Law Arbitrator.  What this means is that I, as well as those who also completed the training with me, can do a combination settlement process know as “Mediation/Arbitration.

Stay tuned for Part 2 of Family Law Settlements and the Mediaton/Arbitration Process