Doug Moe, Q.C. – How Mediation & Arbitration Can Help Families in Separation & Divorce (#1)

Jeannine Crofton

So I’d like to thank you, Doug Moe Q.C., for coming to our podcast on Family Law Matters. I specifically asked you to participate because you are a family mediator and arbitrator, and, of course, a lawyer. I was hoping that you could tell us a little bit about how you got into the field of family law and then specifically into the work of mediation and arbitration.

 

Doug Moe Q.C.

Well, I’ve been practicing about 35 years. When I started, I thought I wanted to be a small-town general practitioner. I actually started practicing in Strathmore, Alberta as a small-town general practitioner and learned all different areas of law and then decided I needed to learn beyond that and moved to Red Deer and practiced there for a year and then decided by that time, I had enough experience in all kinds of areas. Now that I decided family law is where I fit. It just fit for me. It just resonated with me and this work I had fun doing, and I thought I could do it well and to do it well you have to do a lot of it and the place to do a lot of it would be in Calgary in order to specialize in family law. I came to Calgary to do it.

 

Jeannine Crofton

And when you think about mediation, what drew you beyond family law into this very specialized field of mediation and arbitration?

 

Doug Moe Q.C.

Well, mostly because it works in legal disputes. The legal system doesn’t work well for family matters. That’s the number one reason for family matters to get resolved the legal system is not well designed. It needs to be done differently in the legal system. We talk about litigation, litigation. The definition of litigation, really at its base, is carrying on strife, and litigation could be like its own living breathing animal with its own need for reproduction and growth. And that’s what happens in litigation. It becomes about the litigation. We lose sight of the kids; we lose sight of the real issues. We lose sight of solving the problems. It just doesn’t work for families. It’s not the way to do it.

 

Jeannine Crofton

So, when you think about specializing in mediation and arbitration, can you tell me about a time when you think it worked really well, how did the process play out so that it got people to where they needed to be?

 

Doug Moe Q.C.

Oh, there are so many. I can’t think of one. It’s almost impossible. It’s not unusual for people to come in thinking they’ve been in conflict, have been through the courts for years. They can’t find any common ground. They wouldn’t agree that today’s Monday, they just wouldn’t. And then they come into mediation. We have a different way of looking at things. We build a different environment for them to talk in a different way of talking. We spend time talking about how we’re going to talk to each other. And we focus on the future and what could happen tomorrow and try, but we don’t give up on the past. We don’t ignore the past. But we stay future focused in terms of despite what happened yesterday, whose fault was yesterday, who we want to blame for yesterday? What can we do tomorrow to solve this problem? And we stay future focused and get people there. They can get done. We see people who come in who have been stuck in their positions in court because that’s what they have to be to succeed in litigation. Then they change gears and look at problem solving and future focused problem solving, and they can get it done.

 

Doug Moe Q.C.

We’ve done it sometimes in half a day, sometimes in a day, sometimes in two days where they spent years and tens and hundreds of thousands of dollars in litigation and get it done.

 

Jeannine Crofton

And so that feels pretty good. I know as a mediator I’ve been meeting for 25 years, and there’s just a moment when you see a shift happen in the room. Do you know what’s that moment is?

 

Doug Moe Q.C.

Yeah. And sometimes it’s dramatic, and sometimes you’re working a lot harder than that. Sometimes people get it. I think what’s important in mediation, and I’ve never seen anybody talk about this in mediation. But I think psychologist Carl Rogers talked about this for the patient to do well with the psychologist the patient had to believe the psychologist cared about them and cared that they would do better. And I think that’s what some mediators bring to the room is that they really exude out of them, that they care, that they care about how people will do, and they care that they’ll do better. They care that they won’t get hurt in litigation, they care that the kids won’t get hurt. And so, if that comes through, when people see you’re trying to help, and they want to solve the problem. You want them to do better, then they can shift. It’s no longer has to be about a fight anymore. And what I call it is it’s not about a contest, it’s not about a conflict, it’s about a restructuring, and we restructure the relationship. It’s no longer a romantic relationship, but we’re still parents in two different homes, and we have to work out those details, and we’re no longer living together financially.

 

Doug Moe Q.C.

We have to restructure the finances. You get them to just think about that and think about it differently than they thought about it before then, there is generally a shift. I’m trying to think of an example, but recently I had one. They were in court for years, and then we spent two days and they were done. And again, we’ve done that with somewhere there in court for years, and sometimes half a day will do it in simpler cases.

 

Jeannine Crofton

If you’re going to define the role of mediation and the role of arbitration, how would you define those two terms?

 

Doug Moe Q.C.

Mediation is a facilitated discussion or facilitated negotiation. The mediator has no power to do anything or make anybody do anything. I always explain it to the parties as if they have a magic no button in front of each of them. And if they don’t like what’s going on, they can just press their no button. And then we have to keep talking. So, nothing you can’t get hurt in mediation because nobody can make you do anything. The other side can’t. The other side can’t get done unless you get done, you can’t get done unless they get done. We do have to work together.

 

Arbitration is a binding process. The hearing is binding, but you can get to an arbitration result all kinds of ways. You can do it from one end of the spectrum it can be as simple as, if everybody agrees and does it with informed consent, it can be as simple as flipping a coin or as complex as going to trial, except you do it privately, and you do it sooner than you go to court and do with a specialized decision maker, as opposed to somebody who maybe doesn’t have specialized family law experience at the courthouse.

 

Doug Moe Q.C.

That’s one of the unfortunate things about our courts is the judges are not always specialized judges. They don’t always know family law.

 

Jeannine Crofton

And so, when you think about all of the supports that people need in going through the divorce process, what do you think? Are some of the best influences that they can expose themselves to when they think about getting to the solution? For example, is it professionals? Is it sitting with a lawyer? What are the best influences that you think they need to expose themselves to?

 

Doug Moe Q.C.

I think they need to go down sometimes two or three paths at the same time, and they need to access people for the proper purposes. The number one thing I’m thinking from a legal perspective, the number one thing they need to do is have a really good what I call case assessment with a senior family lawyer who has lots of experience, knows what they are doing and has a full toolbox. That they have a toolbox that includes not just litigation but includes collaborative law, includes mediation, includes arbitration, includes how to do a four-way meeting to keep everybody in the room and get it solved. So that’s from the legal side. But there’s always the legal stuff, and there’s also emotional and relationship stuff, and it’s that emotional and relationship stuff that makes divorce hard. And people need a good divorce coach or psychologist or mental health professional to help them see the forest from the trees in terms of their emotional stuff and their psychological stuff that will make them better clients for the lawyer that will save them tens of thousands of dollars in legal fees. If they can deal with those issues separate from the legal process, too many people try to solve those issues in the legal process, and the legal process does not solve those issues.

 

Doug Moe Q.C.

It can’t solve those issues. It’s never been designed to solve those issues and it won’t solve those issues.

 

Jeannine Crofton

What’s the difference between mediation arbitration and a parenting coordinator?

 

Doug Moe Q.C.

So, mediation, again, is to facilitate negotiation or discussion. Arbitration is a binding hearing in some form or fashion. Again, there’s lots of different ways to do an arbitration. I wrote a paper about it a couple of years ago for lawyers about and they called it a menu of design options. The title of the paper is “how much justice is enough”, fast, good and cheap. Pick two. If it’s going to be fast and cheap, it might not be as good but will be done. And if it’s going to be good and cheap, it might not be that fast and so on. So, there’s ways to design it. That’s one of the real beauties about arbitration is being able to design the process, so it’s as much process as is needed to get it done and be fair for everybody. No more process than it’s needed to get it done and be fair for everybody. If you want a court process, you’re stuck in their process, period.  Parent coordination is a unique animal in that you’ve got a mediation aspect to it. You have an education aspect to it. You have a counseling aspect to it and not counseling, such as psychological counseling, but more of a coaching aspect.

 

Doug Moe Q.C.

If the parent coordinator is prepared to accept responsibility for that, have an arbitration aspect to it, so the parenting coordinator can work with the family, meet with the kids, work with the family to help them solve things from just an information perspective, by education, by coaching or counseling a little bit and helping people through it by mediating resolution to a dispute, or if they can’t agree on the dispute, then if they have arbitration powers given to them, in their parenting coordination agreement, then to decide the dispute in a binding way and end it. And in some high conflict families, they don’t do any of those education pieces. They just do the deciding piece. And there’s ways to do that better than other ways. But parent coordination tends generally to be done with mental health professionals, not lawyers. In fact, my partner, Brad Mustard and Kevin Hannah and I taught a course twice for the Association of Family Conciliation Courts to parenting coordinators about how to deal with arbitration issues.

 

Jeannine Crofton

Nice. So, every little resource has their place in the process. I’m curious about. Have you ever seen people in mediation get close? They get very, very close that there’s sort of an outcome at the end that they could agree to, and then they just can’t get there. Have you seen those moments?

 

Doug Moe Q.C.

Oh, I describe it. Yeah. I describe it as solving the distribution of millions of dollars, and then the thing falling apart because somebody won’t give up the toaster oven that belonged to the other person’s dead sister. We know it’s not about the toaster oven, and we know it’s about the resentment and anger they feel over the marriage and the marriage breakdown. And we can’t get there because those emotional and relationship pieces are just so hard. I was just involved in a matter recently before the courts in what’s called a JDR, which is like a judicial mediation, and it was a long litigation. We weren’t involved till recently, and our client really had an emotional reaction to settling the matter in any form or fashion. But they did. It did get done. After 20 years. We were involved for the last four months, but it did get done because we were able to coach him about the importance of the resolution, the importance of  being done versus the cost/benefit, that even if those emotions and his feelings about this were super important to him, they weren’t going to get resolved in this matter, and he wasn’t going to get that result.

 

Doug Moe Q.C.

He was logical enough, we were able to speak to his logic side of his brain, his human side of his brain, not his animal instinct and emotional part of his brain and let him rise upstairs and operate from the higher level rather than the lower level and get it done. But that was hard, because now you’re telling somebody who’s a very serious, significant, successful person to ignore something that they have super strong feelings about and just deal with it from a business perspective. It’s hard, and that’s what I’m saying. They do need to have that coaching and counselling, whether they get it from their lawyer or they get it from mental health professionals, preferably because the professionals know what they’re doing. The lawyers don’t necessarily know what they’re doing on that end of it. And there would be a lot less litigation if that went on. If people got that support.

 

Jeannine Crofton

One of the things that I’ve often thought about both providing psychological services and mediation services to folks who are in the family law process is that the generational benefit is huge because some of those things, those conflicts that start in the generation before you affect you and your conflicts with the other partner affect your own children. That’s one of the things that sort of inspires me in moments where I think, oh, this is getting tough. What do you think about that thought?

 

Doug Moe Q.C.

Well, people get stuck in their patterns for sure. And having people look outside their patterns. I say my job isn’t to tell you the sky is blue. It’s my job to tell you it’s raining and figure out which way to point the umbrella and quit looking out that window, look out this window. And so sometimes that’s hard news for people, whether I’m doing it as a lawyer or as a mediator or even an arbitrator trying to resolve it without doing a hearing to give people that hard perspective. But that’s the value of a specialized somebody who’s got subject matter specialization or knowledge in one of these things that you can see what the outcomes are, and you can say, look, you think it’s going to go like this? I’ve been in this movie already 1000 times. It rarely goes like that. Now, if you want to make your bet, okay, but take a look at this. We use all kinds of different tools to help people there, and we actually do math, and we do a risk assessment and risk analysis. Look at the potential for things to happen and the probabilities and the cost of getting there versus the cost of settling and sometimes settlement and paying even when you shouldn’t pay is the only rational thing.

 

Jeannine Crofton

Tell me more about that.

 

Doug Moe Q.C.

So, for example, if I told you, you had a 20% chance of winning your case, and if you won, you get a million dollars. That really means your case is worth about $200,000. But then if I told you it was going to cost you $300,000 to go to trial to get that $200,000, and that if you won, you got court costs against the other side. They have to pay you reimbursement of some of your costs to get there if you win. But those aren’t always 100% of what you pay your lawyer. See, it might get 40% of that $300,000, you might get $120,000. So now you get a judgment for the $200,000, the 20% chance you’re going to win, plus your 120,000 in costs. It costs you $300,000 to get there. So, you’ve gained $20,000, and it took you two and a half or three years of litigation and not sleeping at night and being stressed and not doing fun things like playing with your kids or working hard on your business or your job or visiting with your spouse or your new spouse. Would you do that for $20,000? Even if you won. Now, maybe you proved you were right. But what if the other side said I’d give you 100 or 150to be done? Now you’re better off taking less than you thought you’d get than if you won the case.

 

Jeannine Crofton

So, you make it a bit real for them.

 

Doug Moe Q.C.

You have to make it real if you don’t make it. The lawyer doesn’t make it real. If the mediator or the arbitrary doesn’t make it real, they’re not doing their job right. A chance to win. You could win the Lotto. 649. But it’s a one in 14 million chance. Is it worth your $2? People have to make their own decisions about that.

 

Jeannine Crofton

And can you say more about that? Because so much of mediation is about making their own decisions, right? They’re left to have the conversation and hear each other out and maybe hear something that they’ve never heard before, because the facilitator really provides an opportunity for both parties to be heard. But when they hear something new, what do you think? Is that an essential part of the process of mediation?

 

Doug Moe Q.C.

So, some of the mediation codes say the mediator should never come up with any ideas or information should only facilitate getting it out of the parties. When people come to me, for example, for mediation, if I just did that, I don’t think too many mediations would ever be successful. People are coming. They’re looking for answers. They want answers. They want an idea of what other families have done that’s worked in situations like this. They want the benefit of my experience and my knowledge in the area. That’s what they come for. And they wouldn’t pay me what they pay me to just have a facilitated negotiation. They just wouldn’t. There’s lots of mediators who can do that. Lots of good mediators. And I’ve had the experience in being in front of and helping out a family member go through an issue with a mediator like that who was just amazingly skilled and was an amazing mediation, had settled it, and that mediator knew nothing about what we’re talking about, and it worked. But that’s just not what people come to me for. That was a very simple issue, though.

 

Jeannine Crofton

And so, you would describe yourself as more of a directive. Mediator or how would you sort of label yourself?

 

Doug Moe Q.C.

Yeah. Evaluative directive. And I always talk to people at the beginning of the mediation about where they want me on the spectrum. I give them the option, facilitative, directive or evaluative or play it by ear, issue by issue. Because some issues, it’s pretty clear, easy to be directive because it’s pretty black and white. And some issues it’s not so easy to be directive and to maintain neutrality. It’s important for the mediator to maybe play a little closer to their vest, just like a psychologist has tension to help people, but also keep them in the room. Mediators have that same tension. How do you help people by telling them what to do, but at the same time keeps them from running out of the room because they don’t like what they’re hearing?

 

Jeannine Crofton

How much do you explain what you’re doing when you’re asking a question? Like if you said to somebody, look, I may be saying this in a bit more neutral manner than you need, but my job here is to keep both of you talking. So, we might stay at this level for a while until we can feel both. All of us feel comfortable going a little bit further.

 

Doug Moe Q.C.

Yeah. So, we talk about what they think. What do they think about this? What do they think about that? You don’t want to talk about how they feel because the feelings aren’t going to carry the day. But what do they think about it? And sometimes people surprise you. They do have thoughts and that you can dispel or take away or change. They say, I shouldn’t have to do this because of this. You go well. Okay. That works if the sun comes up in the west, but it comes up in the east, and it’s not going to work, right? Or you can think that. But that’s not what’s going to happen once you go home and talk to your lawyers because the lawyers will give you independent legal advice and it’s never going to fly. It’s not going to work. That dog doesn’t hunt is the phrase some people use, right. So, it’s about just seeing where they’re at, seeing what they think, seeing where they’re apart, seeing if they can’t find. I mean, we talk a lot of mediation training about option development. People can only handle in their brain one or two or three options.

 

Doug Moe Q.C.

You can’t sit there and give people eight options because it just blows their brains. I can do it because I’ve developed those neural pathways to have put 20 options in and look at them. But if you’re doing a subject that you don’t normally do, family law, and you’re trying to figure out options, you sort of need option A and option B, right. You can’t really evaluate a whole bunch of different options.

 

Jeannine Crofton

Yeah. There’s a whole psychological research about that. I don’t know if you’ve ever heard of the Jam experiment where someone will walk in and there’s 20 sets of jams and they’ll walk out not buying any jam, but you put three in front of them and 70% of them will walk out with some jam.

 

Doug Moe Q.C.

That’s why the car dealers have a high-end model, a low-end model and medium model. So, everybody wants the high-end model, but they might buy the and they don’t really want the low end model. They might buy the low-end model because it’s cheap. But they’ll buy the medium model because they can’t afford the high end one, and they don’t want to have the cheap one. And they’ll sell a few high-end ones.

 

Jeannine Crofton

Same concept. So can you tell us a little bit about arbitration. You were speaking earlier before our interview about the arbitration act and about how if you sort of ask somebody if they want to arbitrate, generally that there’s more to arbitrate. But if you ask them to be more specific, then it can be first mediation and then arbitration. Can you just speak to that a little bit about how that goes?

 

Doug Moe Q.C.

So, there’s mediation and there’s arbitration, two separate processes. Some people agree to do what we call a hybrid process of mediation arbitration. A lot of times they think that’s mediate until mediation doesn’t work anymore and then move to arbitration. And when we’re doing that, so when we call it, when’s mediation over, when do we move to arbitration? Sometimes it’s built in that any one of the parties can call it. But usually, the mediator arbitrary will say no. I think we should still mediate for a while longer. I think it would still be productive to do that, or even to mediate how we’re going to manage the arbitration in a more economic or efficient fashion. Let’s mediate that. And then we have a discussion about at the beginning, if we’re going to mediate arbitrate, that if we aren’t successful in mediation, we can talk about at the end about how we’re going to do the arbitration, including what if anything, comes with us from the mediation into the arbitration because the mediator arbitrator will have heard everybody talking about the settlement discussions and mediation. And people have a spectrum again. And there are choices to say, look, everything you learned about us about facts can come into the arbitration to be used, but settlement discussions can never be used.

 

Doug Moe Q.C.

That’s the law or we could say to the mediator arbitrator, disabuse your mind of everything you heard in the mediation and when we start the arbitration we will start from scratch as if you didn’t even know our names and hadn’t met us yet. And usually, people do something in between there. But whichever way they do it, the arbitrator, as arbitrator, is not allowed to use any settlement discussions or negotiations as any consideration at all in an arbitration decision. If the arbitrator, they could only decide to make a decision. It’s called an award in arbitration. They can only make an award based on facts and the law and how those two things connect. So, if somebody said, I’m prepared to go live on a beach in Mexico, drink tequila and you can have all the kids and all the money as a settlement proposal, the other person can’t in arbitration say that they said that they just can’t. And even if they say that even if they burn it out, the arbitrator just ignores it. It’s no different than when you hear in the news about a judge hearing a case where they found a trunk full of drugs. And then the drugs aren’t in evidence because it was an illegal seizure.

 

Doug Moe Q.C.

They know the person had a trunk full of drugs, but they can’t use that evidence. And in arbitration, similar rules apply that only materially relevant facts carry the day. Not every fact. And I always talk about the 80 20 rule in arbitration. My 80 20 rule is of 100% of the things you want the arbitrator to know. Only 20% of it is going to be material irrelevant by and large, that’s going to drive the decision. The other 80% is noise around the edges. And I tell people that at the front end. So, if they drift into the 80%, I can say, I think you’re drifting into the 80%. You want to get back to the 20 so we can save time. And if they think the 80% is relevant, they can tell me why, I’m open minded, but it helps save time and save money.

 

Jeannine Crofton

So, the last bit I’d like to ask is if you have advice for people who are going to be deciding to mediate or arbitrate, what advice would you give them?

 

Doug Moe Q.C.

I would say learn a lot about it first, and the best way to do that would be to get there’s some reading you could do. But the first place in any separation of divorce, I think, is meet with a good psychologist to make the threshold decision about whether you want to be in the relationship or out of the relationship. Before you even talk to a lawyer, decide if there’s a way to save your marriage, lawyers have a duty to promote reconciliation unless it’s clearly impractical. And by the time most people come to see us, it is impractical. People have moved on and they’ve moved away. They’ve got new partners. They’ve been apart for years. They’re never going back together. So, they should really, I think, work with a good psychologist, even for a couple of hours to say, Should I do this? Shouldn’t I do this? Why shouldn’t I do it? Because sometimes I think we see people jump too quickly, react too quickly in leaving their marriages and regret it later. We do see that. And the second thing is, even before they pull the trigger on ending a relationship, they should visit with a good divorce lawyer, experienced divorce lawyer to talk about what it’s going to look like, because when they have that information, what it might look like to separate and split up the finances or deal with the kids in two different homes.

 

Doug Moe Q.C.

That might be an incentive. That might be a good reason to try and find ways to make that marriage work. That was maybe not the best but could be made better. And I’ll just give one quick story. I had a lady come to me one time who said, I have to get a divorce because my sister, my mother said I had to because my husband had an affair. I said, well, do you understand that you don’t have to get a divorce? That’s just a choice. And you could choose to recognize that that’s maybe not the cause of the end of your relationship, but a symptom of what’s going on between you and your husband. You could work with your husband to make it better and fix that. And I think that was probably about 25 years ago that family is still together today. I ran into him at the car show one time a few years later, and the husband just looked at me and said thank you.

 

Jeannine Crofton

In a knowing way, right?

 

Doug Moe Q.C.

Yeah. So, she thought she was stuck. I just wonder how many other people think they’re stuck and don’t really explore that. Don’t really explore the fact that the relationship isn’t working. Well, maybe I’m not a marriage counselor, a therapist or a psychologist. I don’t profess to be. But it seems to me that sometimes people do are too quick, and by the time they do come to us, it has festered and gone so far, the classic divorce. Sometimes there’s physiological problems, psychological problems, abuse, substance abuse, different things like that where marriage just isn’t tenable. But oftentimes it has just sort of reached. You invest hard on your kids, you invest hard on your job, and your relationship is like a third job that you leave for later because you’re investing in those first two that are taking priority, no investment, no return. So, I don’t know if people can go back and reinvest later on and make it work. That would be more year realm than mine. But I just wonder sometimes if people forget they have that option to try that on for a while.

 

Jeannine Crofton

Yeah, in my practice, I kind of think of it about it’s. A redesign of the relationship, there’s a crisis or there’s a transition out of the relationship. That’s sort of how people enter into my practice. And I’m surprised by how many people come in and say, I’m just not sure. And so, we start to talk about all the various options, and we try and get the relationship to the best point it can be. And then people decide at least that’s my advice to folks is that see how good it can be before you make a decision, because it’s really easy to end it when it’s not good.

 

Doug Moe Q.C.

One of the things I tell people, especially when we’re dealing with parenting, is the story of the end of your relationship isn’t the story of your whole relationship. Let’s remember that when we’re negotiating.

 

Jeannine Crofton

Yeah, that’s a very wise piece of advice. One last thing. Marital mediation, stay together. Mediation. Do you have any thoughts about that process? Do you know what?

 

Doug Moe Q.C.

Yeah. I think that’s a great idea. I can’t say that I’ve done much that I don’t get that opportunity, but I’ve offered it, and I’ve offered it. I think that’d be a great place. You’re the psychologist again. I’d be jumping into your realm. I don’t know it, but I think the best benefit to mediation is how to reframe what you’re saying in a way that allows the other person to see it and understand it. Because what happens is most people want the same thing, are trying to do the same thing, just are not effective at communicating it to each other and having that communicator in between to help them translate and see it is what the real value is. It just works.

 

Jeannine Crofton

Yeah. And I play a lot of my mediation strategies and training to the marital work that I do. And for lots of people, they do, they just kind of see it from another perspective that’s never been possible to them. And I really sort of credit the mediation training that I have. So, thank you. Thank you so very much. It’s been a real pleasure.

 

Doug Moe Q.C.

Thank you. You’re welcome.