Today’s blog post is written by NSRLP Director Julie Macfarlane and Tania Perlin B.A., L.L.B. from the law firm of Tania Perlin, Barrister & Solicitor. Ms. Perlin is also a certified Mediator with the Ontario Mandatory Mediation Program, a public speaker, and a litigation wellness coach.
One of the typical responses we are hearing from people when we ask how they are managing during this stressful time is: “I didn’t go out all that much before, but now that I am told not to go out, I really want to…”
We always miss what we can no longer do.
As the weeks pass and we still cannot do some of our favourite things – visit friends and family, go to a local bar or restaurant, attend sporting events, even sit in class if we are in school – things begin to feel very different.
When we make our own choices about where to go and who we see, we have control over our actions. When someone or something is restricting our movement, we begin to feel the gravity of the situation as we lose control over our daily lives. The stress that loss of control invokes is very real.
Those who have been or are going through the litigation process understand this feeling better than most. Even before the pandemic, litigants faced the uncertainty of what might happen in court, the decision that a judge will render, how they will be treated by opposing counsel or the opposing litigant, and most of all, the unknown of when the ordeal will be over.
In a time when courts have been closed and cases suspended until further notice, we may want to think about taking some measure of control back: over a conflict, over a legal process, and over at least some aspects of our lives as they are affected and changed by the pandemic.
Resources and supports for litigants
Over the last month, NSRLP has been focusing on creating resources and providing clear and accurate information that can cut through all the static, the sometimes confusing and (we appreciate, inevitably) changing official messages from law societies and courts. In particular we are creating and providing some practical resources and support to family and civil litigants whose lives have been upended by the shut-down of most court services.
We realize that there are many, many people with shared parenting arrangements who are now anxious about continuing these, and many others whose income has suddenly changed and who are having difficulty with support requirements. To this end, we have created some template clauses for separated or divorced parents who may wish to temporarily change their arrangements in order to achieve at least a measure of certainty in very uncertain times. We have also broadcast a free webinar explaining how to fashion an agreement to get parties through this period with some temporary undertaking that makes everyone feel a little better.
Is this a time to re-evaluate your conflict?
Maybe the silver lining behind all this stress, fear, and uncertainty is that it offers some litigants the chance to re-evaluate their conflict and the desired result. As mediators, and as human beings, we know that it is normal for people in long-term conflict to feel angry and want to “punish” the other side. These often become the driving forces in a long-term conflict. But the pandemic is forcing all of us to hit “pause” and focus on what we really need – for example, the safety and well-being of our children – and not just what we want, and think we deserve to have. Stripping away anger and resentment and focusing on need opens up many possibilities for resolution, even if just on an temporary basis, a “holding pattern”.
You could reach out to the other side – whether a self-rep or a lawyer – and propose considering a temporary “interim” settlement. The webinar gives a set-by-step guide for doing this, and you can also consult our Settlement Smarts Primer for SRLs. Remember that you are perfectly competent to be your own negotiator, if you take the advice of other SRLs, set emotions aside, and focus on the prize: resolution.
Consider mediation
Mediation is an important option for some litigants at a time when cases cannot move forward. For those who would not ordinarily want to consider mediation, the indefinite court closures may prompt them to explore this possibility. The mediation process allows litigants to have control over their cases, to be part of the solution, and to perhaps complete their case with minimal costs and less waiting time. This of course requires a competent mediator who will facilitate this approach and help parties to reach a mutually satisfactory solution.
Mediation is a challenging process. However, with a competent mediator, and the right guidance, it can be very successful. The process requires the desire of both parties to move on with their lives by taking some control over the uncertainties and anxieties of the present situation.
Many mediators are offering online services, and some of these are free (check with your local courthouse for a local provider). We urge you to consider this route for taking back a measure of control over your life at this time. If you want to revert to the situation before the pandemic once this is over, a temporary agreement allows you to do so. Or you may have found an unexpected path to resolution of some of your longer term conflict.
As we move through this difficult time, we realize how precious and valuable our lives are. We should not spend more time than is absolutely necessary fighting, being angry, and simmering in our desire to be right. Health, freedom to do the things we enjoy, and spending time with people we love, are more important than anything else. Let’s release the rest and focus on securing these.
