Diaries
Diary 6: Mediation and Arbitration-delays and hours of Billable Time
Mediation/Arbitration Failures
Clients have no options other than using a system that economically supports and rewards lawyers.
In my case, only three options were given:
1) Court trial (clients are told this is very costly and expensive to finish with the costs of court reporters and lawyers for both sides (highly adversarial)
2) Mediation trial run at the whim of the lawyers (arbitrator runs the show and has no impetus or incentive to complete the file (working with both opposing counsel with more motive to prolong proceedings, not to solve issues in the divorce file they are handling. This can run for years while all lawyers financially benefit from making the file drag out longer during mediation and arbitration.
3) Divorce retail discount where both parties are in agreement to divorce (only 20 percent of people can divorce this way). This process does not work in cases where there is high conflict or in custody fights sometimes encouraged by the lawyers.
My mediation and arbitration hearing took place over a four year period. Long delays in the mediation process made it extremely difficult for the file to be concluded. In fact, it took seven years for this woman to get her final divorce judgement from the court. I had to force the signing of the final divorce order by the court as my ex-spouse would not sign the divorce judgement order. The separation agreement was also never drafted or agreed to during their 7 years of separation. The custody of the children was further complicated due to an alcohol addiction by her ex- spouse. There were lengthy delays in the mediation process as he would not show up for dates and she was still charged by her lawyers for the time. Excessive court dates occurred during mediation when the arbitrator left on sabbatical for long periods of time. The monthly bills for each client ranged between 15-20K a month and on a few months, the bills exceeded 35K (high conflict). Several caveats were placed on the home to make sure that the lawyers were paid first. The woman who retained residential custody of the children lost her home. She is now renting a home with her children as the trust funds from the divorce went to pay the lawyers and the arbitrator’s bills. The emotional trauma of the children losing their home, their friends and their father to alcoholism was devastating to the kids. Both children have been in and out of counselling over the last 8 years. Time will tell the long term impact of this process on the children and how they will find a path forward.
If you calculate the bills over four years, the cost to each client is excess of 300K plus the arbitrators bill which was over 125K. Spending over 700K on legal bills bankrupt the family. That is little consolation for the children who need to attend university in the future.
Learnings
Mediation and arbitration can bankrupt a family as once the mediation/arbitration agreement is signed it is very difficult to terminate the arbitrator. Both sides must agree to terminate. It costs a great deal to start over with a new arbitrator. Either way, the legal fees can be extremely expensive.
