The breakdown of your relationship with your partner does not have to mean the start of a new relationship with the court. Mediation can be a useful tool in resolving your family law matter:
- mediation is often more cost-effective than proceeding to court;
- mediation can often assist with settling your matter, or at the very least narrowing the issues, in a timely manner. For instance, mediators may be available to work with you and your partner within weeks or a few months of your separation, while a trial will likely take more than a year (and sometimes much longer); and
- mediation allows for creative solutions that are tailored to your particular family’s needs
Furthermore, sections 7.1 to 7.5 of the Divorce Act and section 33.1 of the Children’s Law Reform Act require parties to try to resolve family law issues by using out-of-court dispute resolution options, including mediation, if it is appropriate to do so. It is therefore important to understand what mediation is and how this process might work for your family law matter.
Mediation in family law involves engaging an independent third party (the mediator) to assist you and your ex-partner in resolving the issues arising from the breakdown in your relationship. The mediator remains neutral during this process and does not provide legal advice, but they do provide legal information and facilitate discussion between you and your ex-partner in an effort to find compromise.
Prior to the mediation taking place, both you and your partner will have an intake meeting with the mediator (separately). Here, you will identify the issues that are important to you, any problems you are having resolving these issues, and any concerns you have about the process. The intake meeting helps the mediator determine how to structure your mediation; the meeting also serves as a way to determine if mediation is an appropriate process for your situation (that is, in circumstances involving family violence or significant power imbalances, mediation may not be the best approach).
At the beginning of the mediation, the mediator will identify the issues for discussion and may also point out the areas in which you already appear to have consensus, if any. You and your ex-partner will then take turns talking about what you want from this relationship breakdown, with the mediator keeping the discussion focused and identifying areas of compromise.
When even the thought of being in the same room as your ex-partner makes your blood boil, “shuttle mediation” may be the better approach. In this case, the mediator will put you in one room and your ex-partner in another room; the mediator will then travel back and forth between the two rooms, listening to what is being said, updating parties on each other’s positions, and again identifying areas of compromise. You can decide to pursue “shuttle mediation” from the beginning or, if you find the situation is becoming intolerable, you can request to move to “shuttle mediation” in the middle of the mediation process.
Finally, while it is inevitably a more costly approach, having your lawyer attend your mediation may be best if your family law matter is particularly high conflict, if the issues are complicated, or if you feel unsure as to whether you will be able to get your point across. Lawyer-assisted mediation ensures your position is conveyed clearly. Further, your lawyer can advise you on the spot as to whether a proposal or compromise is the right approach for you.
What happens in mediation, stays in mediation
Mediation is often “closed”. This means that nothing that is said or done during the mediation can be later used in court (or in arbitration) and the mediator cannot be summonsed to court to discuss what happened. The practical effect of “closed mediation” is that clients can feel free to discuss settlement options without fearing that if mediation fails, these settlement positions will be used against them at a later date.
What if we can’t agree to everything?
That’s ok! Even if you can only agree on some issues, you will be narrowing the issues that remain for another process (such as court proceedings), which is likely to reduce your overall legal fees. As well, mediation may take a few sessions, particularly if there are several issues on the table.
If you have more questions about family law mediation, please contact one of the family litigation lawyers at Richardson Hall LLP to see how we can help.
*This article is not intended to provide legal advice.