Q: What is family law mediation?
Family mediation is an informal method of alternative dispute resolution available to parties who are seeking a divorce or separation.
It is used primarily to settles issues involving:
- custody and access,
- division of property,
- child support, and
- spousal support.
The process done in a confidential, timely and cost-efficient manner with the aide of a neutral and impartial third-party (mediator).
The parties must consent to participate in mediation and they must both consent to the mediator selected to guide them throughout their negotiations.
It is not necessary that the parties obtain lawyers to represent them during the negotiations however it is recommended since the mediator is not able to give legal advice to the parties, nor is he or she empowered with the ability to make final and binding decisions.
The parties must resolve the disputes and come to an agreement themselves. At the conclusion of the negotiations, the objective is to incorporate all decisions into a written agreement that is to be signed and adhered to by the parties.
Q: How can mediation help?
Mediation can be incredibly helpful in that it can save spouses a lot of time and money as it is generally more efficient than the court process. It can reduce the emotional and psychological costs associated with divorce and litigation as it is non-adversarial and does not pit the parties against one another.
It promotes the resolution of the issues involved by the parties who work together and discuss their situation to achieve the best possible solution that meets their needs as well as those of their children (if any are involved).
Through the meetings and with the guidance of the mediator it might be possible that the parties are taught the ability to communicate with one another thus improving their post-separation/divorce relationship and making the transition much easier for all those involved. The ability to be civil, amicable and effectively communicate with one another will make any future amendments to the written agreement much easier to execute.
Q: Is a mediation agreement binding?
Yes. The goal of mediation is to incorporate all decisions into a Separation Agreement. If the Separation Agreement is in writing, dated, signed by the parties and witnessed then it becomes a valid, enforceable and binding contract between them.
The court will honor and respect the agreement arrived at by the parties and in the case of a dispute or breach judges will usually but not always defer to it.
However, if there is evidence of non-consent, duress, fraud or mistake as to the nature and quality of the agreement, and this is proven in court, then the contract becomes void and no longer binds either of the parties.
Judges are granted the ability to make determinations regarding the issues in dispute and to set aside the Separation Agreement.
Q: How long does mediation take?
Mediation will take as long as necessary to ensure the resolution of all issues in dispute or it will end when it appears that there is no reasonable prospect of resolving the dispute. The length of the mediation process varies and it will most likely depend on the number of the issues involved and the parties’ ability to communicate and co-operate with one another.
The ability of both you and your spouse to be cooperative and agreeable will also influence the length of the process and will definitely speed it up saving you both time and money.
There is no time-limit imposed however if it becomes evident that the parties will not reach an agreement on the issues in dispute then the mediation must fail and the parties may move on to either arbitration or litigation.
Q: How much does mediation cost in comparison to the traditional court process?
It depends on the mediator used, the number of sessions needed and whether or not the parties decide to obtain counsel to represent them during the process.
The only definite response that can be given is that mediation is less costly than court as the personal, informal and incredibly focalized nature of this method of dispute resolution allows for a quicker conclusion than dragging the matter through the court system.
There are numerous pros and cons associated with opting to retain counsel to attend mediation with you. If you decide to forego legal representation then you may save money since it will not be necessary to pay for his or her attendance. However, you run the risk of subjecting yourself to power-imbalances or agreeing to an arrangement that will later be deemed not to be in your best interests. The presence of a lawyer during mediation usually results in quicker resolutions and there is often a greater probability that an agreement will be signed.
Q: What is collaborative family law? What is the goal?
Collaborative family law is a method of dispute resolution premised on honesty, integrity and respect between the parties.
The parties sign an agreement at the outset promising not to go to court or threaten to go to court to resolve their issues and there must be full and complete disclosure of all relevant documents.
It involves a series of four-way meetings between clients, lawyers and other third-party specialists (financial specialists, child-care workers, social workers, etc.), during which the clients are empowered with the ability to direct the meetings and make all decisions involving custody and access, support (both spousal and child) and division of property.
The lawyers act as coaches and guide the parties through the discussions and help to manage any conflict that may arise. The parties are encouraged to discuss their feelings and communicate to one another their personal wishes and needs. Everything said and done during the four-way meetings is kept completely confidential.
The goal of this process is to draft a valid and binding agreement resolving all the issues stemming from the breakdown of the relationship/marriage and which highlights the priorities of the parties involved and their children (if there are any).
Q: What is the difference between collaborative family law and arbitration?
The difference between collaborative family law and arbitration is primarily that in collaborative four-way meetings the spouses are the individuals empowered with the ability to discuss the issues and make all decisions relating to their situation.
The arbitration process, on the other hand, resembles an informal trial where the parties select an impartial third party to make any decisions for them. The arbitration award is binding and enforceable by the court. Prior to engaging in arbitration the parties must sign an agreement in which they essentially agree to waive their right to go to court and litigate the issues in dispute. It is statutorily imposed that the parties obtain independent legal advice prior to arbitration so that they are aware of the nature and consequences of their decision.
Arbitration is heavily regulated by the Family Law Act, the Arbitration Act and the Family Arbitration, O.Reg. 134/07 whereas collaborative family law is not.
Q: If we start with the collaborative process, can one spouse decide to opt out of the process down the road?
It is possible for one of the spouses to change his or her mind and decide to opt out of the collaborative process. In that event, the dispute may be resolved either through arbitration or by going to court.
However, you should be aware of the fact that once the decision is made to end the collaborative process the lawyers initially retained or any other members of their firm are prohibited from representing you or your spouse. This means that the both of you will need to research, locate and retain a new lawyer for your case. This will probably cause delays in the resolution of the issues involved and end up costing more than the collaborative process.
Q: What is arbitration?
Arbitration is a method of alternative dispute resolution that most closely resembles the court process.
Prior to engaging in arbitration the parties must sign an arbitration agreement, in the presence of a lawyer, stating that they waive their right to go to court and litigate the issues in question.
Arbitration allows the parties to make submissions and present evidence to the arbitrator who is empowered with the ability to make final and binding decisions which are then incorporated into an arbitration award and enforceable by the court.
The process is confidential, as well as time and cost-efficient.
Often, disputes are resolved much quicker than they would be in court and for a smaller price.
If parties are unhappy with the award ordered by the arbitrator they may appeal it. Arbitration is regulated by the following Acts:
- Family Law Act
- Arbitration Act, and
- Family Arbitration, O. Reg. 134/07
Q: What if my case cannot be resolved with mediation?
If mediation proves to be unsuccessful than the options available to the parties are:
- to engage in arbitration, or
- to bring the matter to court and have a judge decide and impose an order.
Q: How do I decide if the collaborative process or mediation/arbitration is better for us than the traditional family law process?
Essentially your decision to engage in one of these three methods of alternative dispute resolution will be premised on whether:
- you would like to resolve the issues in a civilized manner,
- you want to protect your children and yourself from the harm associated with litigation
- you would like to remain amicable with your spouse leaving open the possibility of achieving a friendship with him or her as well as maintaining the friendships of all those connected to you and your spouse through your social circle,
- you would like to take control of the decision-making in your situation as opposed to handing it over to a neutral third-party, and
- you would like to avoid the excess costs and time associated with litigation.
Should any or all of these apply to you and your spouse and you are confident in your abilities to communicate and co-operate with one another then mediation and collaborative family law are probably the best options for you.
If, on the other hand, you and your spouse would like to avoid the costs and time associated with litigation yet are not highly confident in your abilities to communicate and together reach decisions to settle the issues stemming from the breakdown of your relationship then you might want to try arbitration.
Q: Can mediation be used to resolve all of our family law issues? Including our custody arrangements?
Yes. Mediation can be used to resolve all corollary issues stemming from your separation and/or divorce.
Decisions regarding custody and access, support and division of property can be mediated and then incorporated into a valid, binding and enforceable Separation Agreement.
The only issue that cannot be determined and resolved via mediation is divorce. The only institution empowered with the ability to dissolve a marriage and hand down an enforceable divorce order is the court.
Q: What situations are best resolved with mediation?
Situations involving parties who are amicable and respectful of each other are generally best resolved with mediation.
Since mediation contemplates a series of intimate negotiations where the affected parties will be face-to-face for prolonged periods of time then respect and agreeableness are necessary ingredients to successful mediation.
The parties must be willing to cooperate with one another, listen to each other and fully consider one another’s needs and hopes when making any decisions.
Q: What are the mediator’s roles and goals?
A mediator is an impartial third-party present during the negotiations between spouses who are attempting to settle issues stemming from the breakdown of their relationship. The mediator does not give legal advice nor does he or she make any final and binding decisions with regards to disputes.
A mediator will facilitate communication between the parties while simultaneously ensuring that discussions are on track.
The mediator’s goal is to help parties reach an agreement on issues related to their separation and/or divorce, such as:
- custody and access arrangements,
- support, and
- division of property.
Successful mediation will result in the enforcement of a Separation Agreement that is binding on both parties as well as agreeable since they were able to discuss and decide on all issues.
Q: Who typically acts as a mediator?
Typically, mediators are social workers, lawyers, or psychologists. However, the role of a mediator is not limited to those listed above, as it is possible for any professional to act as a mediator.
The most important consideration with regards to mediators is selecting an individual who has completed training courses and as a result acquired the necessary skills to effectively lead and guide spouses to the full and final settlement of all issues stemming from the breakdown of their relationship.
Q: What happens if my ex-spouse/partner does not honor our arbitrated agreement?
Should you find yourself in the position whereby your spouse has unilaterally decided not to honor the arbitral award imposed and the award contains a provision contemplating secondary arbitration then the parties will be obligated to return to arbitration to attempt to settle any novel disputes which may have arisen.
If secondary arbitration is not contemplated specifically in the agreement then the parties may have to litigate, at which point the court may order that they try to arbitrate once again or it may simply determine that litigation is essentially the only plausible method to employ in order to resolve the situation at hand.
If you have filed the award with the court, then the court has the authority to enforce it as if it were a court order. The advantage of turning your arbitral award into a court order is that it instantly becomes endowed with all the rights and privileges generally associated therewith.
Not complying with an order could have the effect of the court finding your spouse to be in contempt resulting in either a fine being imposed or a term of imprisonment.
If the award deals with issues of support and it is filed with the court then it automatically gets sent to the Family Responsibility Office, which is a government agency empowered by law, with the ability to enforce support payments. Should your ex-spouse/partner decide to not pay support then the Family Responsibility Office has the ability to take steps towards securing your payments such as garnishing his or her payments.
Q: Is the agreement we come to arbitration legally binding?
Yes. The conclusion of arbitration is an arbitral award in which all the decisions arrived at by the arbitrator are recorded. This award is binding on both parties similarly to a separation agreement.
However, parties also have the ability to file an application with the court to have their award enforced.
Once the application is filed, the court can enforce the award as if it were a court order. But remember, The Award is subject to certain rights of appeal.
Q: How much does arbitration cost?
There is no definite answer to this question. Factors that will affect the cost of arbitration are:
- the arbitrator used and his or her hourly rate,
- whether or not a location needs to be rented out for the sessions
- whether or not the parties want a transcript of the proceedings to be kept
- the number of sessions needed, and
- whether or not the parties decide to obtain counsel to represent them during the process.
The only certainty is that arbitration, that is uncontested, is less costly than court as the personal, informal and incredibly focalized nature of this method of dispute resolution allows for a quicker conclusion in comparison to dragging the matter through litigation.
Q: How long does arbitration take?
Arbitration will take as long as necessary to ensure the resolution of all issues in dispute.
Therefore, there is no definite answer to this question as the number of sessions and the length of each will depend greatly on the number of issues in dispute and the complexity of your issues in dispute.
Q: What situations are best resolved with arbitration?
Arbitration contains an adversarial quality to it and removes decision-making authority from the parties and vests it in an impartial arbiter. There is no need for the parties to cooperate with one another and discuss resolutions to their issues.
Therefore, parties that are not amicable or parties who do not wish to preserve and maintain a friendship yet who wish to reduce the costs of litigation and the delays associated therewith may benefit from arbitration.
Q: What is closed mediation? How does it differ from open mediation?
Closed mediation entails that all discussions between parties during mediation are kept completely confidential. They may not, at a later date, be used against them in arbitration or in court with the exception of documents relevant to the legal process, i.e. financial statements. Also, a mediator involved in closed mediation cannot be summoned to court to testify or discuss the process or the details of the negotiations.
This type of mediation differs from open mediation in that open mediation is not confidential unless the parties stipulate in a mediation agreement (signed prior to the commencement of the process) that there are certain issues/aspects of the negotiations that they would like to keep confidential. There are no limits on what may be disclosed outside the mediation should it fail and the parties are forced to arbitrate or litigate. Consequently, a mediator may be summoned to court and asked to testify.
Please note that it is of utmost importance that you indicate, at the outset, which type of mediation you would like to employ.
Q: What are the arbitrator’s roles and goals?
An arbitrator’s role is to provide parties who are in the process of divorcing or separating with a neutral third party arbiter to:
- listen to them, assess their submissions and other evidence provided, and
- then make final determinations regarding the issues in dispute, which are determinative of same and binding on both parties.
An arbitrator’s goal is to effectively resolve the issues stemming from the breakdown of a relationship in a fair manner by:
considering both parties’ circumstances and arguments, and
make determinations to best suit the needs of all those involved.
In so doing, it is hoped that the possibility of litigation is eliminated since the parties can benefit from the full and final settlement reached.
Q: Who typically acts as an arbitrator?
Typically, the following professionals will act as arbitrators:
- social workers,
- parenting coordinators,
- mental health professionals, and
- financial specialists.
You should be aware of the fact that realistically any professional who has completed the requisite training and obtained the certifications may act as an arbitrator.
You should ensure when making your selection that the desired individual has vast experience in the arbitration process and is knowledgeable with regards to family law in both Ontario and Canada.
Q: How is arbitration different from mediation?
These two forms of alternative dispute resolution differ greatly because during mediation the parties involved retain at all times complete control over all decision making.
Mediation is completely non-adversarial and encourages cooperation and respect between the parties. The mediator’s role is simply to provide support to the parties, clarify any issues that may arise and guide the discussions in the right direction to ensure efficiency and resolution.
Arbitration, on the other hand, resembles an informal trial whereby the parties vest ultimate decision-making authority in a neutral third-party. The arbitrator listens to the parties’ claims and evaluates all evidence presented so that at the conclusion of the arbitration, he or she may make final determinations on the issues in dispute which will then be incorporated into an arbitral award.
Once a decision is made you are bound to follow it, you do not have a choice, and therefore, parties involved in arbitration are granted the ability to appeal an arbitral award if they are unhappy with it.
Q: What happens if my ex-spouse/partner does not honor our mediated agreement?
Typically, an agreement signed at the conclusion of the mediation will contain a clause stipulating the process to follow should there be an issue of non-compliance.
This clause may stipulate that if parties do not comply with the agreement then they must mediate until the issue is resolved or if necessary arbitrate or litigate so that the decision may be made by an impartial arbiter empowered with the ability to do so.
If no such clause exists then the parties may still choose to mediate or negotiate a resolution amongst themselves. Or, litigation in court may be their only option depending on the relationship between the parties.
If the aspect of the agreement that is not being honored has to do with support payments and the agreement was filed with the court (and consequently filed with the Family Responsibility Office) then the payments will be enforced through said government agency. The Family Responsibility Office has the ability to garnish wages in satisfaction of arrears of support payments.
If, the agreement was not filed with the court then it may be possible to do so after the fact so that the Family Responsibility Office can enforce the payments. However, you should be aware of the fact that you will be required to pay a fee, i.e. $50.00.