What is Family Mediation?

Mediation is a process in which disputing parties agree to appoint a neutral third party to assist them in attempting to reach a voluntary settlement. The neutral third party does not make the decision, and the parties may terminate the process at any time. It is confidential and without prejudice. Where a voluntary settlement is achieved, it only becomes binding when the parties have concluded a settlement agreement.

In the area of family law, mediation is an effective, non-adversarial method of alternative dispute resolution when parties are attempting to resolve issues related to separation, custody and access, division of property, and support (both spousal and child). However, mediators cannot grant a divorce to spouses; only the court is empowered with the ability to do so.

Mediation offers parties with a less costly, time-efficient and informal process to resolve disputes. It must be voluntarily consented to by both parties. Therefore, in situations where parties have been subjected to either abuse or cruelty, thus resulting in fear of power imbalances between them, it is absolutely crucial that the mediator “screen” the parties to ensure that they satisfy the voluntariness component.

Once you and your spouse or partner decide to separate and/or divorce, you may decide to mediate the issues stemming from the breakdown of your relationship. This is especially true if both you and your spouse are amicable, willing and agreeable to sit down, listen to one another, and effectively communicate any and all needs and concerns you both may have.

What Is a Mediator?

A mediator is a neutral third party who sits in with the parties that are contemplating divorce and/or separation and guides them through the process. A mediator will help the parties identify the issues that need to be resolved and will help the parties effectively communicate with one another until an agreement is reached. A mediator, unlike an arbitrator, does not have the ability to make any final decisions. The parties must reach the decisions themselves and together.

A mediator cannot give legal advice relating to the rights and obligations of the parties. He or she may, however, educate the parties with respect to legal issues, such as ensuring that the best interests of the children (if any are involved) are consistently considered and promoted. As a result, it is strongly suggested that you seek and obtain legal representation both during mediation and especially prior to signing any binding agreement outlining the decisions reached. A lawyer will be able to analyze and scrutinize the agreement ensuring that it is fair to both parties and equally considers their interests.

As was previously mentioned, the parties must both consent to mediation and the mediator selected. Therefore, you should endeavor to select a mediator who is experienced in mediation and has had considerable exposure to the issues stemming from the breakdown of relationships/marriages.

Impartiality is crucial when it comes to selecting a mediator; therefore neither you nor your spouse should attempt to select or approve a mediator with whom either of you has a relationship, either personal or professional. This might compromise the neutrality of the mediation process and skew the decisions, and outcome, to favour one party over the other.

The Mediation Process in Ontario

Once yoyu and your spouse decide to separate and/or divorce, you should take the following steps:

Retain a lawyer
Discuss with your lawyer the diverse methods of alternative dispute resolution that could be employed.
Next, both you and your spouse must agree to engage in mediation.
Once you have agreed on mediation as the form of dispute resolution, either you and your spouse, or your lawyers, must discuss and determine which issues will need to be mediated.
When the issues have been identified, you and your spouse must endeavor to locate and select a mediator to which you are both agreeable.
Next, you will begin the mediation process by engaging in the first meeting with your spouse, the mediator selected, and your lawyers (if any have been retained). Depending on the complexity and number of issues that need to be mediated, one meeting may not be enough for full settlement. It is impossible to say with certainty how many meetings are needed in order to resolve a case.
At the conclusion of each meeting there will hopefully be an agreement reached on every issue, which will then be recorded by the mediator in a Memorandum of Understanding.
You and your spouse should take the Memorandum of Understanding and have it reviewed and revised by your respective lawyers.
If there are no problems with the agreements reached and if they seem fair, one lawyer should incorporate them into a valid, final, and binding Separation Agreement.
Once the agreement has been drafted, you and your spouse should come together one more time and sign it, in front of witnesses thus ensuring its enforceability.

Advantages of Using the Mediation Process in Family Law

There are numerous advantages associated with mediation and the decision to partake in the mediation process:

The process is completely voluntary; therefore you can never be obligated to partake therein. Also, if you decide during the process that you are no longer able to participate and would want to instead engage in arbitration or litigation, the process may be terminated without any repercussions.
Rather than leaving ultimate decision-making authority in the hands of a third party, the affected parties retain the ability to make all decisions. This is especially important in situations where children are involved, as the decisions reached can take into account any special needs or circumstances particular to the family in question.
Mediation maintains and promotes communication between the parties, rendering their relationship amicable and avoiding hostility. Consequently, this reduces conflict and makes the transition easier on all the affected parties, especially the children.
The process is completely confidential if the parties decide to engage in closed mediation, which allows them to be honest and truthful during negotiations as nothing will be held against them in court or arbitration.
Potentially the most appealing aspect of mediation is that it is less costly and timelier than going to court to litigate the issues stemming from the breakdown of the relationship.

Disadvantages of Using the Mediation Process in Family Law

There are few disadvantages associated with a decision to partake in mediation. However, you should always keep in mind:

Full and final settlement of all issues rests in the hands of you and your spouse. There is not an impartial arbiter empowered with the ability to make final determinations on the issues in dispute, should there be a lack of agreement. Therefore, if the two of you cannot mutually come to an agreement, the mediation fails. Consequently, all the time and money expended in preparation for and during the process is forfeited.
Issues that are left unresolved still need to be determined, which means that the both of you will have to incur further costs and waste more of your time trying to finally get everything settled.

Mediation for Children

Many couples who are pursuing a divorce use mediation as a method of resolving issues such as child support, division of property, parenting time, and decision-making responsibility. Mediation is a process where the parties appoint a neutral third party to assist them in making the decision. The process is entirely voluntarily, and the parties may terminate the mediation process at any time. The mediator will not make any decisions, but rather they will assist the couple in reaching an agreement on important issues.

How do I start mediation for my child?

The first step in the mediation process is to retain a lawyer and discuss with the lawyer the various methods of alternative dispute resolution that you could use to resolve your matter including mediation. Mediation may not be for everyone as it requires a certain amount of cooperation and communication between the parties in order to be effective. Speaking with an experienced lawyer can help you to decide whether mediation is a viable option for you and your spouse. After retaining a lawyer, you and your spouse must agree to engage in mediation as it is a voluntary process.

Once you retain a lawyer you can also discuss with them the possibility of your child being involved in the mediation process.

What questions will a mediator typically ask a child?

Whether the mediator will ask your child any questions or what questions they will ask will ultimately depend on the child’s age and the circumstances of you and your spouse’s relationship. If the mediator does ask your child questions, your child will not be asked to choose between their parents as the purpose of mediation is to arrive at a solution that is acceptable for all parties involved, including the children. Another common question that a mediator may ask your child is how you (as their parents) can help them get through this difficult time of their parents separating. Any questions posed to children throughout the mediation process will generally center around determining what solution would be in the child’s best interests.

Can a child go to mediation?

Depending on the circumstances of the divorcing couple, it may be necessary for the mediator to speak with the children involved to get their perspective and address their needs during this process. It is possible in some circumstances for a child to attend the mediation, but the mediator will ensure that it is not against the child’s best interests to do so.

Med-Arb

Med-Arb or Mediation-Arbitration is a process where Mediation will be first used to resolve the conflict between the spouses. If the Mediation process failed to reach an agreement, then the process will shift into Arbitration where the Arbitrator's decision will be legally binding on both spouses.