Family Law Mediation
Upon the breakdown of a relationship, there are several methods of alternative dispute resolution available to parties to address their separation. One such method is to mediate the issues that arise out of the separation. This involves parties attending before a mediator who works with the parties to reach consensus on matters and help resolve their issues.
If you are choosing the route of mediation, our experienced family lawyers at Stephen Durbin and Associates can assist you through the process.
The following guide walks you through family law mediation in Ontario. It is not a substitute for personalized legal advice.
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What is mediation
Mediation in Ontario is an alternative dispute resolution (ADR) process where a neutral third party (mediator) helps parties resolve disputes without a court trial. It is confidential, voluntary (except where mandated), and aims to reduce cost, delay, and adversarial conflict.
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In Ontario, mediation is governed by the Family Law Act, R.S.O. 1990, c. F.3. While the Act does not mandate mediation, it supports negotiated settlements consistent with its provisions. The Family Law Rules, O. Reg. 114/99, encourage parties to consider alternative dispute resolution, including mediation, before trial.
Courts often strongly encourage or order mediation before trial, especially in parenting and support disputes. Judges may direct parties to attempt mediation where appropriate.
Open vs. Closed Mediation in Ontario
Closed mediation is the most common form used in Ontario family law. All discussions, offers, and negotiations during mediation are confidential and without prejudice. Information disclosed cannot be used as evidence in court or arbitration if mediation fails. Also, the mediator cannot be compelled to testify in court about what occurred during mediation. In a closed mediation, the mediator’s report only states whether an agreement was reached, without details of discussions or reasons for failure.
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Typically, closed mediation encourages candid communication and full disclosure without fear of repercussions.
Conversely, in an open mediation, confidentiality is waived and statements and offers made during mediation can be disclosed in subsequent legal proceedings. The mediator may prepare a full report detailing what happened and why mediation failed; this report can be submitted to court. Also, a mediator may be required to testify in court. Open mediation is often requested when parties want transparency for judicial review or accountability in the process.
In either case, parties are required to sign an Agreement to Mediate specifying whether the process is open or closed.
SD&A associates can guide you in deciding which option is best suited for your case if you are considering mediation.
Choosing the right mediator
It is important to remember that mediators must be neutral and cannot give legal advice. Parties have the right to withdraw from mediation if they feel that the mediator is biased or partial.
In Ontario, many family lawyers also provide mediation services. It is strongly encouraged that you select a mediator who has in-depth knowledge of family law so that all issues arising from the separation are properly addressed.
Preparing for mediation
Mediators in family law matters must screen for domestic violence. This ensures that the process is balanced and neither party has an unfair advantage.
In the event that there are concerns about power imbalance, mediators can provide accommodations such as shuttle mediation or virtual sessions to address the concerns. The appropriate mode of mediation can positively impact the process and allow parties to feel empowered as they go through it.
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A mediation is most effective when parties attend prepared. It is best practice to gather all key documents such as pleadings, agreements, and any existing orders ahead of the mediation. If financial disclosure is required, exchanging it well in advance of the mediation allows parties to appropriately prepare their positions when attending mediation. Any other relevant information such as reports from the Office of the Children’s Lawyer or medical documentation may also be helpful in the mediation process.
Taking stock of your goals for the mediation process before it starts can help you to have a productive mediation and resolution. Before starting, consider doing the following:
- Identify your main priorities
- Decide what you are willing to negotiate versus what is non-negotiable
- Have realistic expectations
- Consider what long-term solutions are available as this may avoid future disputes
Independent Legal Advice
As a mediator cannot (and should not) provide legal advice, it is highly recommended for parties to consult a family lawyer during the mediation process to properly understand their rights and obligations. Lawyers can even attend mediation with clients.
It is crucial that you obtain independent legal advice before signing any agreements proposed at mediation. This allows you to fully understand the rights and obligations that you will have pursuant to the agreement once it has been executed. Also, a lawyer, upon reading the proposed agreement, can identify concerns or parts that may be unfair to you. While you may choose to execute the agreement anyway, it gives you the opportunity to fully understand the legal ramifications of what you are signing.
Mediation-arbitration
Mediation-arbitration is a two-step process where parties first attempt to reach a resolution through mediation. If the mediation is unsuccessful in resolving all or part of the issues, those issues are then decided by an arbitrator. Depending on the parties’ agreement, the mediator can serve as an arbitrator on the same matter, or alternatively, a different person is appointed as an arbitrator.
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This approach combines the flexibility and collaborative nature of mediation with the finality of arbitration, reducing delays and costs compared to court proceedings. Mediation-arbitration is governed by the Arbitration Act, 1991, S.O. 1991, c. 17, and requires a written agreement outlining the process, consent of both parties, and compliance with family law screening for power imbalances or domestic violence.
How Stephen Durbin and Associates Can Help
Commencing mediation after a separation can be challenging and there are multiple factors to keep in mind such as choice of mediator and more.
At SD&A, we can help you navigate the mediation process so that you feel prepared and empowered. We can also provide independent legal advice on any proposed mediation agreements that you may have already reached in a mediation.
If you are considering mediation and require assistance, please contact us at SD&A to find out how we can guide you.
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