Unqualified mediators prey on broken families

Jan 14, 2008 04:30 AM

Staff Reporter
Lawyer Philip Epstein, a Toronto family lawyer and veteran mediator, says unqualified people are talking families into inappropriate agreements.


A Toronto-area family's problems with the mediator they'd hired to work on their daughter's messy divorce reached a nadir when her 6-year-old son came home with a bizarre story.

During a supervised visit with his father in a restaurant, the mediator told the waitress she was the little boy's "mommy."

"He was very distressed, very, because he didn't know what was going on," said a female family member, asking to remain anonymous because their case is still before the courts.

The family was aghast but initially didn't complain. They were afraid to fire the mediator, whom they paid more than $15,000, because they feared a negative report in family court.

"Everybody told us, `Don't make the mediator mad'," she said.

When they finally did try to file a complaint they found they had nowhere to turn: mediators aren't regulated in Ontario.

Instead, anybody can hang a shingle and plunge into a highly sensitive area of working with divorcing couples and their children at a time when most are financially and emotionally vulnerable.

"Any Tom, Dick or Harry can hang out a shingle, " said

E. Jane Murray, an Ottawa-area family lawyer. "The problem is that any Tom, Dick or Harry doesn't know what they are doing." Murray called it a "sad situation when the mediator ends up doing more harm than good."

During a recent Toronto Star investigation of problems in the Ontario family court system, the top issue was the costly wait due to a lack of judges, mainly the result of the federal government's failure to keep up with appointments.

However, running a close second were stories about mediators and other family law professionals such as assessors as well as the public's general lack of understanding about the services available.

Philip Epstein, a Toronto family lawyer and veteran mediator, says it's "unfortunate people can be talked into unreasonable and inappropriate agreements. It's in everybody's interest that mediators meet a minimum standard of professionalism." It shouldn't be a "casino or free-for-all," he said. "The law must be the guide for agreements."

Toronto has the highest percentage in Canada of divorcing couples opting for mediation, with Epstein estimating 60 per cent choose the service in some form. There are no numbers for divorces in the GTA but the most recent StatsCan report pegs the number of divorces in Ontario at 27,513 in 2003.

The lack of regulations had led many professionals to urge Premier Dalton McGuinty's government to focus on mediation and assessment to ensure proper supervision and a recognized complaint system.

Dr. Barbara Fiddler, a Toronto psychologist and mediator with 25 years experience, says "mostly there are good people who are trying to do a good job."

Still, she calls on the provincial government to "take a closer look" at the industry so that everybody is protected. She argues there should be minimum professional standards and the province must support proper training and educational programs.

But Ontario Attorney-General Chris Bentley says there is no need to regulate because these fields are self-regulating.

In an email from a spokesperson, Bentley pointed out family law professionals "are generally members of self-regulating professions," and thereby bound by rules of professional conduct with established complaint processes.

"It's not as if nobody has to answer to anyone," he said, stressing family law mediators "need to meet a specific set of qualifications if they are members" of professional organizations, such as the Ontario Association of Family Mediators.

The operative word, however, is if.

If they are members of professional organizations with codes of conduct and a complaint process, mediators are indeed regulated.

But mediators can come from a wide variety of backgrounds, including lawyers, psychologists, psychiatrists and social workers and there are differences in oversight. A lawyer, for example, has to be a member of the bar association but someone with a degree in social work doesn't necessarily have to be on the roster of the Ontario College of Social Workers.

Fees also vary. A lawyer working as a mediator might charge $400 an hour in Toronto, while a psychologist might start at $300 to work either as mediator or assessor. An assessment can cost $10,000 to $30,000 and take six months.

Anisa Ali, a Toronto-based mediator who voluntarily belongs to the Ontario Association of Family Mediators, sees too many people hanging out a shingle and throwing around the terminology. She charges $150 an hour and says "a lot of the bad apples undercut prices to get clients."

"Beware of professionals playing multiple roles for example, psychologist/family counsellor then mediator then parenting co-ordinator (who help a couple work out a parenting plan)," warns Ali. "The issue of confidentiality becomes muddled," she says.

Bentley also notes there are government-funded mediators available through family courts in Ontario who must meet the standards of the Ontario Association of Family Mediators. As well, the province's Arbitration Act sets tough standards for the arbitration process, more often chosen in high-conflict cases. (Amendments last year to the Family Law Act made several changes, including the removal of the right of parties to choose faith-based arbitration.)

Bentley adds he won't further regulate, explaining: "These measures provide a significant level of quality assurance within our family court system."

A significant level of quality insurance. Not all-encompassing.

A website set up for the public to monitor the justice system www.canadacourtwatch.com details complaints to its Family Justice Review Committee. People have complained about assessors conducting themselves "in an unprofessional and unethical manner," whether by using selected information to tilt the outcome in favour of one parent, refusing to accept pertinent information or failing to "conduct a proper child custody evaluation and, in many cases, actually caus(ing) harm to their case and to the children."

"That's exactly what happened to us," said the family member whose case begins this story. "We were very unhappy with the mediator but we were afraid to complain. We were confused precisely because there is no process. It's very complicated without rules and regulations."

She claims the mediator took on the role of supervising the boy's visits with his father, steering the family away from $80-an-hour supervised visits available through family court, in favour of her own $175-an-hour services. She also tabled a report with the court without having shown it to the family.

Ali has seen mediators who don't tell their clients their reports aren't legally binding or that they have recourse to mediation through the courts. People don't have to be afraid, she says.

Family law glossary 

Mediator: Tries to facilitate agreement between parties. Can be private or obtained through the court. Does not give legal advice.

Assessor: Investigates in order to make child custody recommendation. Used only in child custody cases, not property disagreements.

Parenting Co-ordinator: Helps parties make a parenting plan to make the proceedings as painless as possible for children.

Arbitrator: Settles family law disputes. Regulated in the sense that, as of 2008 in Ontario, decision is legally unenforceable if arbitrator does not meet specified qualifications. Usually, but not always, a lawyer.