FAQs: Mediation

What is mediation?

Mediation is a method of resolving disputes with the help of an impartial third party mediator. The mediator works with the parties to find optimal solutions in a manner that is cooperative and non-adversarial and takes into account each person's interests.
Most mediators will guide the parties through a specific process to ensure that each individual’s needs are met and to ensure that the conflict and animosity between the parties is decreased.
A family law mediator can resolve all issues in dispute between married and unmarried individuals, including parenting, custody, access, child support, spousal support, and property division. Pre-nuptials and Cohabitation Agreements can also be mediated.

Typically, mediation significantly reduces the animosity between individuals during and after the process. This is especially important when individuals have children.
Mediation fosters creative solutions that work well for the particular circumstances of the individuals compared to cookie cutter decisions made within the court process. For example, parenting plans developed in mediation will take into account the parent’s and the children’s schedules and activities, the children’s emotional needs, the roles present within the family and any special needs.
The process greatly reduces legal costs compared to litigating in Court.
Typically, using mediation to resolve issues will conclude matters in 1 to 2 months rather than 1 to 2 years which is typical when litigating.
It is easy to include third party professionals to aid individuals in the mediation process. For example, accountants are often brought into the mediation process to help with the division of property. It is also typical to see psychologists enter the process to help the parties understand the needs of the children.

Mediation can either be lawyer assisted or not.
If mediation is lawyer-assisted both parties bring their lawyers into the mediation sessions. The lawyer’s role is then to answer questions for the mediator and their client throughout the process, clarify issues and evidence for the mediator, give legal advice to their client throughout the process, facilitate the provision of financial and other information to the mediator and facilitate the completion of the agreement when the process is concluded.
You may also choose non-lawyer assisted mediation where only the parties involved and the mediator participate in the process.

When the issues involved are few and simple.
When both parties have a comprehensive knowledge and understanding of both of their finances
When there are no abuse issues.
When both parties are comfortable communicating with each other and voicing their opinions clearly.
When the parties want to decrease the cost of the process.
When both parties feel that the other party is honestly disclosing information.

When there are abuse issues in the relationship.
When one party feels that the other is not honestly disclosing information.
When one of the parties does not understand the financial circumstances of the other party.
When one of the parties feels uncomfortable communicating with their spouse or the mediator.
When there are complex issues or many different issues.
When the parties cannon resolve the issues in dispute - either between themselves or through counsel.

Choose a mediator. We recommend choosing a family law lawyer who has been trained in mediation. Although your mediator will not give you legal advice it is beneficial to have a mediator whom is knowledgeable in the law. Family lawyers will know when certain agreements or terms in an agreement will not be agreeable to the Court or which may cause concern to a party’s independent legal counsel. Family lawyers are also familiar with a variety of terms, legal solutions and legal processes which greatly aid individuals when trying to create solutions to the issues.
While not mandatory, before attending mediation it is suggested that both parties obtain advice regarding their rights from separate collaborative lawyers. You will find a list of collaborative lawyers at www.collaborativelaw.ca.
You must then decide whether you want to attend mediation with a lawyer or not.
You should then make an appointment for both you and your spouse to attend a mediation session. Typically the mediator will schedule 2, ½ day sessions. You can also book several meetings in advance if you believe the issues are complex. When contacting the mediator neither party should discuss the particulars of their case with the mediator or their assistant unless specifically asked. It should be made known immediately during the call that you are interested in using the lawyer’s services as a mediator and not as a lawyer. It is important that the mediator remain unbiased and objective; therefore, they should not hear information from one party in the absence of the other party unless special circumstances warrant it.

Typically you and your spouse will attend before the mediator in a boardroom. The setting is casual and both parties are encouraged to relax and be as open minded as possible.
The process and the ground rules will be explained by the mediator and if everyone is agreeable to moving forward, a Mediation Agreement will be signed.
The mediation process then begins.
If the parties reach an agreement on some or all of the issues, the mediator will draft a report and forward it to both lawyers. The lawyers will then draft a Contract or an Order which reflects the mediated agreement. The parties will then attend before their lawyers to get independent legal advice respecting the agreement. If both the client and the lawyer are agreeable to the contract it will be signed and forwarded to the other lawyer where the same process is followed by the other spouse. Typically, at that time, one of the lawyers will also draft the divorce documentation reflecting the agreements made in mediation.
If agreement is not reached in mediation the parties are free to continue with mediation until agreement is reached or exit the mediation process and attempt other methods of resolution.
Either party may exit the mediation process at any time.

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