Family Law Mediation

The breakdown of a marriage or common law relationship requires the settlement of numerous issues relating to:

• the division of property,
• the payment of support to either a child and/or a spouse,
• the custody of and access to a child, and
• any other issue pertinent to the situation in question.

A common misconception many people may have is that a settlement is only possible by undergoing litigation in the traditional court process. However, there are numerous cost-efficient and timely options available to spouses who wish to separate and/or divorce definitely that do not involve going to court.

One such option is family law mediation. This informal and non-adversarial process involves a neutral third party who sits in on meetings between spouses (and their lawyers if necessary) and attempts to help them come to an agreement on any or all issues stemming from the breakdown of their relationship.

You should be aware of the fact that mediation may be agreed to at the outset of your separation as the form of dispute resolution to be employed or in conjunction with litigation at court if it is deemed more efficient to mediate some (but not all) issues.^1.

Similar to Collaborative Family Law, the parties involved control the entire mediation process. This is due to the fact that they alone possess the ability to make any and all final decisions related to the issues in dispute.

You should always bear this fact in mind when deciding whether or not to engage in mediation for dispute resolution. It requires that both you and your spouse work together, during the meetings, to discuss and resolve all issues. You will be required to cooperate with one another, listen to one another and consider each other’s opinions, needs and ultimate wishes for the outcome of the process.

Not every separating or divorcing couple will be able to employ mediation. The deterioration of relationships due to extreme abuse or cruelty, adultery or power imbalances would make it very difficult to create the type of setting needed to engage in successful mediations as parties are expected to come together and respect each other enough to make determinations regarding property, children, and much more.

If there is a disagreement, or if the parties are having trouble coming to a final resolution of an issue, a mediator cannot impose a settlement on the parties. Nor does a mediator act as a lawyer during the process; he or she will not advise the parties with respect to their legal rights or obligations. A mediator acts as a guide and attempts to lead the parties in the direction of full and final settlement, while simultaneously ensuring the facilitation of communication between them and the constant consideration of the most important issues, i.e. the best interests of the children, if any are involved.

Since a mediator does not have the ability to make determinations or to advise the parties regarding their legal rights and obligations it is suggested that you obtain independent legal representation prior to agreeing to engage in this form of dispute resolution.

A decision to mediate must be consensual and voluntary and it can only be fully secured if it is informed. Consulting with a lawyer prior to mediation ensures this.

Having lawyers present during the negotiations may also further serve to protect the parties’ interests as well as result in a quicker resolution of the issues involved. Either lawyer can draft an agreement simultaneously to the negotiations and same can be signed at the conclusion of the final session.

Mediators are usually fully capable of leading discussions, offering suggestions and recognizing power imbalances or undue influence so that any decisions made are in the best interests of all parties involved. Even if the parties do decide to forego legal representation during the process, the Memorandum of Understanding should still be brought to a lawyer for review, prior to drafting a binding agreement, thus ensuring the full protection of the parties.

Another requirement of mediation, apart from voluntarily agreeing to engage therein, is that both parties must agree on the mediator selected. Consequently, it is important that you ensure that neither yourself nor your spouse has or has had a relationship, either professional or personal, with the potential mediator as this could skew the neutrality and outcome of the mediation process.

Mediation is not regulated; however, it is recommended that mediators successfully complete certain training courses to ensure that they possess the necessary skills to guide parties throughout the process.

It would be optimal, if you are considering mediation, to select an individual who not only has extensive training in mediation but who also has had considerable exposure to family law and the issues associated therewith. Therefore, mediators who, by profession, are either lawyers, social workers or child care workers would be ideal candidates (but do not limit your selection to same).

Mediators are available through:

• private practices
• community groups
• counseling organizations, or
• the Family Court system in the following locations:
  • Barrie
  • Bracebridge
  • Brockville
  • Cobourg
  • Cornwall
  • Hamilton
  • Kingston
  • Lindsay
  • London
  • L’Orignal
  • Napanee
  • Newmarket
  • Oshawa
  • Ottawa
  • Perth
  • Peterborough
  • St. Catherine’s

Types of Family Law Mediation

Lastly, there are two different types of mediation available to parties that decide to engage in this process. The first and most common type is closed mediation.

Closed mediation is synonymous with utmost confidentiality as everything said and any offers made during negotiations are not disclosed. Nor can they ever be disclosed at a later date against either of the parties in court or in arbitration. The only exceptions to this are documents that are relevant to the legal process such as financial statements.

Another aspect of closed mediation is that the mediator selected by the parties can never be summoned to court to discuss the process or the details of the negotiations between parties.

Alternatively, parties may decide to engage in open mediation which does not ensure complete confidentiality nor does it place any bars on disclosure outside the mediation negotiations. Since there are no limits as to what may or may not be disclosed should the negotiations fail a mediator may be summoned to testify regarding the details and process of the mediation at a later date in court or in arbitration^3..

Regardless of the type of mediation you and your spouse decide to employ it is incredibly important that you inform the mediator of your choice prior to any negotiations taking place.

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FOOTNOTES
^1.This is contemplated in s. 3 of the Family Law Act, R.S.O. 1990, c. F.3:

Mediation
3. (1) In an application under this Act, the court may, on motion, appoint a person whom the parties have selected to mediate any matter that the court specifies.
Consent to act
(2) The court shall appoint only a person who,
(a) has consented to act as mediator; and
(b) has agreed to file a report with the court within the period of time specified by the court.
Duty of mediator
(3) The mediator shall confer with the parties, and with the children if the mediator considers it appropriate to do so, and shall endeavor to obtain an agreement between the parties.
Full or limited report
(4) Before entering into mediation, the parties shall decide whether,
(a) the mediator is to file a full report on the mediation, including anything that he or she considers relevant; or
(b) the mediator is to file a limited report that sets out only the agreement reached by the parties or states only that the parties did not reach agreement.
Filing and copies of report
(5) The mediator shall file with the clerk or registrar of the court a full or limited report, as the parties have decided, and shall give a copy to each of the parties.
Admissions, etc., in the course of mediation
(6) If the parties have decided that the mediator is to file a limited report, no evidence of anything said or of any admission or communication made in the course of the mediation is admissible in any proceeding, except with the consent of all parties to the proceeding in which the mediator was appointed.
Fees and expenses
(7) The court shall require the parties to pay the mediator’s fees and expenses and shall specify in the order the proportions or amounts of the fees and expenses that each party is required to pay.
Idem, serious financial hardship
(8) The court may require one party to pay all the mediator’s fees and expenses if the court is satisfied that payment would cause the other party or parties serious financial hardship.

^2.However, you may be able to enter into a contract with the mediator at the outset of your open mediation that stipulates and specifies what may or may not be disclosed should the process fail.