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.
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.
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, rather 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.
Individuals who tend to act as mediators are generally (but not limited to):
- social workers, and
- child care workers.
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 favor one party over the other.
Mediators are available through either:
- private practices
- community groups
- counseling organizations, or
- the Family Court system in the following locations:
- St. Catherine’s.
You and your spouse may decide to engage in mediation at the outset of your separation, as the only form of dispute resolution for your case, or in conjunction with litigation at court. The court may decide to allow you to mediate certain issues that are being litigated if it is plausible and more efficient than litigation. Section 3 of the Family Law Act, R.S.O. 1990, c. F.3 accounts for this:
3. (1) In an application under this Act, the court may, on motion, appoint a person whom the parties have selected to mediate any matter that the court specifies.
Consent to act
(2) The court shall appoint only a person who,
- has consented to act as mediator; and
- has agreed to file a report with the court within the period of time specified by the court.
Duty of mediator
(3) The mediator shall confer with the parties, and with the children if the mediator considers it appropriate to do so, and shall endeavor to obtain an agreement between the parties.
Full or limited report
(4) Before entering into mediation, the parties shall decide whether,
- the mediator is to file a full report on the mediation, including anything that he or she considers relevant; or
- the mediator is to file a limited report that sets out only the agreement reached by the parties or states only that the parties did not reach agreement.
Filing and copies of report
(5) The mediator shall file with the clerk or registrar of the court a full or limited report, as the parties have decided, and shall give a copy to each of the parties.
Admissions, etc., in the course of mediation
(6) If the parties have decided that the mediator is to file a limited report, no evidence of anything said or of any admission or communication made in the course of the mediation is admissible in any proceeding, except with the consent of all parties to the proceeding in which the mediator was appointed.
Fees and expenses
(7) The court shall require the parties to pay the mediator’s fees and expenses and shall specify in the order the proportions or amounts of the fees and expenses that each party is required to pay.
Idem, serious financial hardship
(8) The court may require one party to pay all the mediator’s fees and expenses if the court is satisfied that payment would cause the other party or parties serious financial hardship.
There are two types of mediation available to parties that opt to utilize this form of dispute resolution:
- the first, most common type and that which makes the process very appealing is entitled closed mediation. During closed mediation everything said and any offers made during negotiations are kept completely confidential. It cannot be used at a later date against the parties at trial or in arbitration. The only exceptions to this are documents that are relevant to the legal process such as financial statements. Moreover, the mediator can never be summoned to court to discuss the process or the details of the negotiations.
- The second type of mediation available is open mediation. Essentially, open mediation does not contemplate confidentiality or impose any bars on disclosure outside the mediation negotiations. There are no guidelines stipulating what may or may not be disclosed at trial should negotiations fail. Therefore, mediators may be summoned and may testify at court about the details and process.
- You may be able to limit this by entering into a contract with a mediator and specifying what can and cannot be disclosed.
- You should always inform your mediator, at the outset of the process, whether you would like to engage in open or closed mediation.
Lastly, the length of mediation varies. There is no time limit imposed and it generally depends on the number of issues that need to be resolved. The greater the number of issues and the level of complexity involved, the lengthier the mediation process will be.
A Quick Note on Med/Arb
Section 1 of the Family Arbitration, O.Reg. 134/07 contemplates Med/Arb and defines it as:
“mediation-arbitration agreement” means a family arbitration agreement that provides that,
- a mediation between the parties is to be conducted before any arbitration is conducted, and
- if the mediation fails, the mediator shall arbitrate the dispute and make a binding resolution of it; (“convention de médiation-arbitrage”)
This alternative to litigation allows parties to engage in mediation initially in order to resolve any disputes stemming from the breakdown of their relationship. The parties are afforded the ability to discuss and reach any agreements themselves relying on the mediator only for guidance and clarification of legal issues. The mediator selected should also be a certified arbitrator because if mediation proves to be unsuccessful, leaving all or some of the issues to be resolved, then the parties transition from mediation to arbitration vesting ultimate decision-making authority in the arbitrator. This process allows couples to avoid litigation in court and with that grants them the ability to make decisions regarding their situation in a timely, cost-efficient and informal manner.
You can find much more information about mediation on the section of our website dedicated to Family Law Mediation and Arbitration.