Mediation is an alternative process that separating couples may use to resolve their differences. In mediation, the couple themselves negotiate their separation agreement with the help of a trained mediator rather than have their legal counsel negotiate for them.
Mediation is not marriage counseling that tries to get the parties back together. Mediation is not therapy that works to have a person accept the separation (although there are therapeutic elements to mediation). Mediation is also not an alternative to the legal system, but works within it. Lawyers are still needed to give advice and to review and sometimes draft the separation agreement.
In mediation, the spouses meet together with an independent mediator o work out a separation agreement. The mediator first ensures that all relevant facts are obtained and disclosed. Next, the unresolved issues are discussed with the couple deciding objective criteria to esolve those concerns. The mediator, without giving specific legal advice, can offer legal information about the law concerning those matters. The mediator and the couple then proceed to create different options to resolve the issues and work out the consequences of those options. The parties then, with the help of the mediator, negotiate properly and fairly to come to an agreement. If an agreement cannot be reached, then the parties are free to try to settle the matter through their lawyers or let the court decide for them. The mediator does not dictate the agreement if the parties are unable to do so.
There are many advantages to mediation, which is why it is becoming a very popular process in marriage breakdowns. The total financial costs of mediation are far less than a legally contested dispute. The time period to resolve a dispute is far shorter than a legally contested dispute. As the parties have more of a role in arriving at their agreement, they are more likely to get along better in the future. They will, therefore, have less enforcement problems and changes to the agreement will be obtained more easily. The mediation process is therapeutic as a key element to ensure that the parties know and at least try to appreciate their spouses’ feelings and positions on the issues.
In mediation, there is a thorough “hearing” of the case. All the facts, all the underlying emotional issues are placed on the table. This should result in a satisfactory decision by the parties. When lawyers negotiate, some of these matters may never get discussed. They may be lost in the back and forth communications as a husband talks to his lawyer, who then talks to the other lawyer, who then talks to the wife and then back through the chain again. If the matter goes to court, the judge, who will not have the same time to deal with the case as mediation does, may miss some facts and issues. The judge must come to a quick decision to resolve the case. Mediation can allow for compromises and more flexibility than a court decision. A court decision may be much more extreme than the terms that could have been mediated. Mediation, therefore, reduces the risks that the court process may present.
Mediation is highly endorsed by everyone involved in the Family Law system. In the Divorce Act, the Federal Government requires lawyers to discuss mediation with their clients. Ontario’s Family Law Act allows judges to order mediation in cases in which a judge believes it would be of help. Judges encourage mediation and participate in pre-trials that are a form of mediation. Lawyers are increasingly supportive of their clients who want to use mediation. They encourage clients in the appropriate cases to try mediation.
Mediation, however, is not for everyone. If there is a history of violence, then it probably would result in the violated party not being able to negotiate on an equal basis. If one party is psychologically not able to bargain as an equal, then mediation is not for that case. Mediators also believe that mediation is not appropriate where there has been child abuse. Of course, mediation is a wasted effort if one or both parties are not interested in listening and compromising so as to come to an agreement. Sometimes one or both parties use mediation as a stalling tactic or a forum to try to convince the other spouse that their stated position is right. However, that still leaves room for the greater majority of separating spouses to at least try mediation.
Presently a license to practice mediation is not required in Ontario. Mediators, therefore, may not have any formal qualifications. The national organization of Family Mediation Canada is working with provincial organizations such as The Ontario Association For Family Mediation to develop mediation as a profession. They have developed standards of professional conduct. Ontario’s Law Society has also developed standards for those lawyers who practice mediation.
Mediators are drawn primarily from three main professions — social workers, psychologists and lawyers. Training to be a mediator might depend on the mediator’s profession. Lawyers in Ontario, are offered a course through the Law Society. There are also courses offered privately and through universities to any person wishing to be a mediator.
Though mediators can cover all issues on marriage breakdown, many social workers and psychologists who are mediators restrict themselves to mediate custody and access disputes. Many lawyer mediators will restrict themselves to the financial and property concerns. Sometimes, mediators of different backgrounds will work in teams to mediate all the issues.
Mediators are found in private practice, social service agencies and court related services. Lawyers and mental health professionals would be able to recommend appropriate mediators. Mediators will charge fees for their services based on an hourly rate. That rate will vary depending on the profession of the mediator. Social service agencies involved in mediation will often base the cost on the incomes of the parties.
Mediators are not alternatives for lawyers. Mediators, even those who happen to be lawyers, are not supposed to give specific legal advice, but only general legal information. Mediators will want the clients to have legal representation for specific advice and perhaps to draft the final agreement. It is important that the clients attend at their own lawyers before they start mediation, so that they know their rights before negotiating. The lawyer is then on call during the mediation process to answer any questions the client may have. Lawyers should encourage clients to mediate when it is appropriate and not do anything that would jeopardize the mediation process.