Area of Law: Family Law
Answer # 0160
What is family mediation?Region: Ontario Answer # 0160
Family mediation is a highly popular choice for couples who want to move on in their lives after they have separated. In family mediation, a third party works together with the couple to help them negotiate a settlement without going to court.
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 ten:
- Conducting an assessment before they take the case as to whether it is appropriate for mediation for any reason.
- Creating a neutral and safe environment — emotionally and psychologically, physically and legally — so that each party feels able to fully participate in the negotiation without fear, duress, or threats of reprisal, judgement or prejudice.
- Managing intense emotions in a way that allows each party to fully express their worries, concerns and goals, without disempowering or insulting the other.
- Identifying the contentious issues, and empowering the parties to go below the surface of those issues to help them gain some insight into the underlying reasons for their respective positions.
- Helping the parties to stay focused on the best interests of their children, and respecting the rights of children to have their views heard.
- Helping the parties better understand where the other is ‘coming from’ legally, emotionally and psychologically.
- Encouraging the parties to come up with their own solutions, and finding neutral ways to help them see options they may not be able to see themselves.
- Reinforcing the parties’ efforts to negotiate and keeping them at the table when the going gets tough.
- Reality-checking with each, often in private, their alternative to settlement, which is often either doing nothing or lengthy and costly litigation.
- Managing all of this in a way that lets each party feel heard, respected, and treated equally by the mediator.
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.
Recent research shows that of all the options available to separating couples, family mediation is usually the least expensive, the fastest and the most useful for parenting disagreements and as useful as any of the others for financial disputes. Couples who use family mediation services report universally high rates of satisfaction with the process and the outcome.
There is plenty of research showing that parties who reach agreements in family mediation are more likely to follow through on them; for instance children are more likely to receive child support when their parents mediated than when they went to court. This makes sense because mediation is a process of self-determination. It is voluntary, and the parties themselves make the decisions rather than having a judge or arbitrator make the decisions for them.
Family mediation is a good process choice for most, but not all, separating couples. It does not work unless both parties actually want to negotiate and are ready and able to do so. It is not a good option where criminal charges have been laid and there are bail terms preventing contact; or when there is an active Children’s Aid Society case. It does not work where one party is afraid of the other, or where the parties are just too far apart in their positions. For more information on mediation, refer to our Alternative Dispute Resolution (ADR) section.
You now haveoptions: