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Given the increasing cost of family law litigation – not to mention the acrimony that accompanies the court process – many Canadians are seeking alternative avenues for resolving parenting and financial issues arising from their separations.

Alternative dispute resolution, or ADR, is becoming increasingly popular across the country, with mediation as the top choice of many ex-spouses. However, whether mediation is appropriate for a given family depends on several factors, and it should not become the default for those hoping to resolve matters out of court.

What is Mediation?

Mediation is a type of guided negotiation, in which a neutral third-party facilitates discussion between the parties and attempts to broker an agreement. This neutral third-party is often a lawyer with background and experience in the specific legal area at issue who has been trained as a mediator. Importantly, mediation is a completely voluntary process to which both parties must agree and from which either party can withdraw at any time.

Although parties can attend mediation without lawyers, some mediators require parties to obtain independent legal advice on the terms of any mediated agreement before the agreement becomes final and binding. If parties do not reach an agreement in mediation, nothing in the process is binding and the process itself is confidential, unless parties agree otherwise in advance.

three wooden mediation figures on scale
Mediation is a type of guided negotiation, in which a neutral third-party facilitates discussion between the parties and attempts to broker an agreement.

What is the Mediator’s Role?

The mediator does not provide legal advice to either party during mediation. Although mediators will sometimes explain the relevant legal concepts that the parties must address, like parenting time or property equalization, for example, they will not advise either party on what position to take or whether a settlement proposal from the other party is a “good” or “bad” deal.

The mediator’s role is largely one of process design. That is, it is the mediator’s job to first determine what each party needs to voluntarily engage in negotiation with the other and make informed decisions free from any form of physical, psychological, emotional, financial, or other power imbalance. The mediator must then design a process that meets the needs of both parties. For this reason, the mediator may conduct intake or “screening” interviews with each party before confirming his or her engagement as mediator to identify any existing power imbalances and determine whether the mediation process can be tailored to mitigate them. More often than not, even in fairly extreme instances of power imbalance, mediators find creative ways to structure the mediation process that nullify the effects of this imbalance and allow for both parties to mediate on equal footing. Where this is not possible, however, the mediator may advise the parties that he or she cannot proceed with the retainer and possibly refer the parties to a different dispute resolution process.

Is Mediation the Right Choice?

While power imbalances are important to consider in deciding whether mediation is the best, or even an appropriate, avenue for trying to resolve your family law issues, other relevant factors include the difference between your position and that of your ex-spouse and your ex-spouse’s willingness to negotiate in good faith. If the gulf between positions on the outstanding issues is too wide, it is unlikely that any amount of facilitation by a mediator will bridge the gap and, as a result, mediation will be a waste of money, time, and energy. Likewise, if your ex-spouse is unwilling to negotiate in good faith and/or believes that he or she can obtain the outcome they want from a judge, mediation would only serve to delay an inevitable court process.

Separation and divorce are extremely stressful for families and figuring out the best path forward to resolve the outstanding parenting and financial issues is not always easy. While most ex-spouses would like to spend as little money, time, and energy as possible on resolving these issues, the appeal of mediation should be considered in light of their specific circumstances and the likelihood that the mediation process will help narrow, if not settle, the issues in dispute. For further information on family law mediation, including whether it is an appropriate option in your case, please contact us.  


This content is not intended to provide legal advice or opinion as neither can be given without reference to specific events and situations. © 2021 Nelligan O’Brien Payne LLP.

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