Area of Law: Family Law
Answer Number: 131
Mediation and family dispute resolutionRegion: Ontario Answer Number: 131
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An alternative to litigation that is being encouraged by lawyers, social workers and judges is mediation. Mediation involves the intervention of a third party professional who acts as a facilitator for the parties to help them reach their own agreement. Mediators generally have backgrounds as lawyers, social workers and psychologists. Research has found that generally, parties who mediate their own agreements have a greater tendency to actually stick to them. One theory is that this is so because the parties have actively participated in the process, and feel that they each have had control of their own destinies, as opposed to court orders which involve a judge imposing a decision which neither party may be content with.
Unlike a lawyer in litigation, the mediator does not represent one side or the other. A mediator’s job does not involve giving legal advice. The mediator’s role is to try to bring the parties to agreement. By doing so, the mediator faces many challenges, including the following nine:
- Creating an objective and safe psychological and emotional environment so that each party feels he or she is being heard without prejudice or judgment,
- Allowing each party to speak freely so as to express his or her position with respect to the various issues,
- Identifying the contentious issues,
- Getting the parties to go below the surface of the contentious issues, in an attempt to express the underlying reasons for having and maintaining a particular position,
- Helping the parties to understand where the other is ‘coming from’ emotionally and psychologically,
- Offering various compromise solutions for positions where the parties seem to be at an impasse,
- Encouraging the parties to come up with their own solutions,
- Reinforcing the parties efforts to mediate, and
- Pointing out the parties “Best Alternative to No Agreement,” which generally is lengthy and costly litigation.
The mediator’s role is to try to find some common ground between the parties, and work with them to help them come together to a final settlement on all issues.
Generally, the parties split the cost of the mediation 50-50. That means that both spouses are splitting the cost of one professional. That is considerably less expensive than each party paying for his or her own lawyer. As well, the mediation process is generally outside the realm of the courtroom. Going to court is very expensive and usually involves:
- Many meetings with your lawyer,
- Getting your story and position down in affidavit form,
- Reviewing and putting together disclosure materials that would include many financial documents, letters and correspondence from each party and from third parties, notes, and assessments,
- Drafting the originating process, such as the petition for divorce, application or statement of claim,
- Research for the relevant legal issues,
- Drafting, serving and filing information statements for the judge in addition to the pleadings,
- All attendance time at court, including waiting time, which could be hours, and
- All court filing fees, where applicable.
In litigation, each spouse pays his or her respective lawyer for all these procedures. Obviously, this is much more costly than both spouses paying for one mediator. At the family court level, there are mediation services offered free of charge.
When is a mediator chosen?
A mediator may come into play at the beginning, or somewhere in the middle of the case. The parties may want to mediate immediately, instead of litigate. The parties must be open to the mediation process and must be ready to compromise and accept that the process will not be successful without each of them giving up something. Sometimes the parties start off with mediation as a result of one or both parties’ lawyers suggesting it. However, not all cases are appropriate for mediation. Sometimes, there is too much hostility, or the parties are just too far apart in their positions. Other times, parties who are very far apart in their positions and start litigating, may, after a period, get tired of the litigation process and become ready to mediate a settlement. It is not unusual for parties to become disenchanted with the court process, and then decide to turn to mediation.
Where to find a mediator
If you decide you want to use a mediator, and you already have a lawyer, ask him or her for a referral. Frequently, the parties’ lawyers will offer the names of three or four mediators for the parties to meet. There are many lawyers and social workers who do mediation work.
Do I still need a lawyer if I mediate?
Even if you and your spouse decide to mediate, you should each continue to have your own lawyer. The lawyers will provide ongoing independent legal advice to ensure that each of you is aware of your respective rights and responsibilities along the way. As well, both of you must be aware of the legal consequences of any agreement you come to, and each of the lawyers must review the agreement and discuss it with the relevant party before signing. It is not the mediator’s role to give legal advice and so each party must have his or her own lawyer for that purpose.
Mediation is a viable, affordable, effective and often, preferable alternative to litigation. If you think you and your spouse are capable of reaching an agreement with the help of a third party professional, you should consider this option. Settling your differences through mediation can help you save time and money.
For more information on family mediation in Ontario, visit the Ministry of the Attorney General website.
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