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Nelligan O'Brien Payne gratefully acknowledges the contribution of Erin Walkinshaw, Student-at-Law in writing this blog post.

Sometimes the only thing separating couples can agree on is that they want to resolve their issues in a cost-effective, time-efficient and discreet way. This is where mediation can be a great option. But it’s not for everyone.

Mediation involves hiring a neutral person, trained as a mediator, to sit down with a separating couple and facilitate communication so they can reach a formal agreement on all, or even some, of their separation issues.

The first thing to know about mediation is that it is not appropriate for all separating couples, and is therefore not mandatory when resolving family law disputes. However, when it is appropriate, it can be a great alternative to court, and will save you both time and money.

A mediation session can be conducted in multiple ways. Which style works best for a separating couple depends, in part, on the level of communication between them.

One form of mediation involves the former couple sitting down with only a mediator. For separating couples who are communicating relatively well, excluding lawyers from a mediation session makes the process less expensive. However, this form of mediation may not be practical if the separation was not mutual and communication between the two parties is strained, or where there are complicated legal or financial issues.

Mediation can also include each party’s lawyer, and is often the more effective option when there is a power imbalance between the parties, or the separation is particularly acrimonious. Having lawyers there can help each party communicate their position to the other party with language that is less likely to elevate emotions and tempers.

If tensions are running high, a separating couple can explore shuttle mediation, whereby the mediator privately meets with each party in a separate room. Depending on the level of conflict, the mediator may bring the parties back together to summarize what each person said, or keep them apart the entire mediation and act as a communication go-between.

A mediator is only there to facilitate discussion and has no power to order any binding agreement at the end of a session. This makes mediation a flexible process, whereby a separating couple can retain control over major decisions in their lives, such as how property will be divided and who is going to have custody over the kids. You can often structure more creative solutions that work for you and your family than a judge would order in court. However, because a mediator isn’t there to give you legal advice, you should always have a lawyer look over a mediated agreement before you sign it.

Mediation also allows you to resolve your separation issues outside the court, which means your private life won’t become part of the public record.

That said, mediation is not appropriate in every case. As John F. Kennedy once famously said, “We cannot negotiate with people who say what’s mine is mine and what’s yours is negotiable.”

Mediation may not be right for couples who have a severe communication breakdown after separation, or where there is a history of intimidation in the relationship. Mediation also may not be appropriate where one person is not providing the disclosure needed for a proper negotiation. The best thing you can do is contact a lawyer to see if mediation is right for you.


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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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