Family Law

Mediation

How is mediation different from Collaborative negotiation?

Like Collaborative Practice, mediation strives to resolve spousal disputes outside of the courtroom. Mediation, however, employs the use of a neutral, third party mediator to facilitate the negotiations between you and your spouse. You can choose to attend mediation with or without counsel, and it is important to fully understand the differences between these two types of mediation before making a decision.

Our family law practitioners are all experienced in representing clients at mediations and Nicola Savin is also a trained and highly-skilled mediator.

Mediation without counsel

If you choose to attend mediation on your own, you should have a high level of trust in your spouse and feel comfortable advocating on your own behalf. The mediator cannot advocate for either of you, nor can the mediator advise either of you on the law. It is therefore important to seek legal advice before entering into mediation and to have a lawyer to consult with as you continue with the negotiations and finalize a settlement.

Your lawyer will help you understand the legal framework within which you are negotiating, as well as the possible long-term repercussions of the arrangements you are considering. If your mediation is successful, you will avoid the high costs and long timeframes associated with court proceedings and feel a sense of ownership of the resolution. The experience of working to a resolution together will also lay the groundwork for addressing future concerns surrounding your children or long-term spousal support issues.

Mediation with counsel

If you choose to attend mediation with counsel, the process is more formal. Generally, there will only be one mediation session – it may be a half-day or a whole day, depending on the complexity of the issues. Counsel will prepare mediation briefs setting out the issues and relevant supporting documents and the mediator will review these in advance. The mediator will determine whether to hold negotiations in one room with everyone present, or to break off into separate rooms, and may move between these options over the course of the session.

The presence of counsel and the formality of the process mean this option may work for you if communication is difficult, there is less trust, or the issues are complex. There still needs to be enough good will to jointly work towards a resolution, since no settlement is reached without an agreement. If mediation is successful, the courts and the higher costs and longer timeframes associated with them, can be avoided.

Frequently Asked Questions

What is a Mediation?

Mediation is an out-of-court dispute resolution process in which the parties discuss and resolve their issues relating to parenting, separation, and/or divorce with the assistance of a neutral third-party mediator.
How do I prepare for Mediation?

It is important to be well prepared in advance of your mediation in order to have a productive mediation session. How you prepare for mediation depends on whether you are attending mediation with lawyers or on your own.

Mediation with counsel attending
If your lawyer will be attending with you at the mediation, the mediator will wish to speak to both parties’ lawyers in a conference call before the mediation. The mediator will also want to have each lawyer submit a Mediation Brief, which is a brief summary of the issues in dispute, the relevant facts and your proposal for resolution. This document is exchanged with the other spouse and provided to the mediator a few days prior to the mediation. This document is very important and should be prepared with attention to detail and be well thought out. Your lawyer will draft the Mediation Brief for you and you should be given an opportunity to vet it before it is finalized.

Mediation without counsel
The mediator will have an individual meeting with each of the spouses in advance of the mediation. This is an opportunity for you to communicate your concerns and goals to the mediator in an informal setting. In advance of this meeting, you should make sure that you know what the issues are and what your positions are on each of them. You can also be candid during this meeting and tell the Mediator which issues are more important to you and on which issues you will be willing to compromise and make concessions. If there is anything you do not want the mediator to share with your spouse, you should let the mediator know. It is preferable that you consult with your own lawyer prior to attending the first joint mediation session so you are properly briefed on the law as it applies to your situation.

How should I conduct myself during the mediation?

It is important that you show up to the mediation with an open mind, ready to roll up your sleeves and work towards an acceptable compromise that you and your spouse can both live with. Ensure that you have brought a laptop or have access to writing material so you can take notes. It is important to remain calm so you can make good decisions. Work out in the morning or go for a walk to relax before your mediation commences.

Arrive at the mediation at least 10 to 15 minutes before the start of mediation so that you can get set up and be comfortable with the surroundings. Make sure you either bring food with you or ensure that the mediator will provide it so you don’t lose energy and focus.

You should listen to what the mediator says, what the lawyers say (if attending with counsel) and what your spouse says. You should be respectful and professional to the mediator as well as to your spouse and/or your spouse’s lawyer (if there is one). Try to be creative and think outside the box for solutions based on your priorities. Do not be positional. Instead, be prepared to make reasonable concessions and make them early in the day. This will help you be more likely to reach a final settlement before the end of the day.

Mediation may not be the best option if you or your spouse has no interest in compromising. No one gets everything on their wish list. To do so would simply escalate costs for everyone and it is not in anyone’s best interests or the best interest of the children.

How much does mediation cost?

Mediators generally charge an hourly rate and require a retainer up front. The retainer is usually shared equally by the parties. Often the retainer will be equal to the cost of a full day of mediation. The Mediator may also charge a non-refundable administrative charge for setting up the mediation.

The hourly rate of the Mediator will depend on the Mediator’s experience and qualifications. Generally speaking, a Mediator will cost $400.00 or more per hour. There are some court associated mediation services that have a sliding scale for mediation. If you are seeking child and/or spousal support, some or all of the mediator’s fees should be tax deductible.

How long does the mediation process take?

The length of the mediation will affect the cost. Being prepared for the mediation, by having all of the issues organized up front and relevant disclosure completed, will make your mediation process more efficient and less expensive. If you are attending mediation without counsel, most mediators limit the sessions to two hours at a time and you can have several of these sessions before your matter is completed. If you are attending with counsel, usually a full day is scheduled for the mediation and the matter is completed by the end of the day or shortly thereafter.

If you are attending without counsel, the number of two-hour sessions will depend on the following factors:
1. The complexity of the issues
2. How well prepared you are for the mediation
3. If there are valuation issues which require appraisals or business valuators’ opinions
4. The emotional complexity/dysfunction of the couple
5. The need to involve a parenting specialist to assist with the parenting plan, if there are children involved.

How to hire a mediator?

It is important that you do some research before you choose your mediator. First, look at the Mediator’s qualifications. Some Mediators are accredited with different provincial bodies (the Ontario Association for Family Mediation (OAFM)) and some mediators have no accreditation at all. Some mediators are family law lawyers and some have only taken a 40-hour course on family law.

If the issues that you want to mediate are primarily parenting issues, you may wish to hire a Mediator who is not a family lawyer but one who has a masters in social work, psychology, or psychiatry, particularly if there are mental health issues involved. This will be a more child-focused approach and also is usually much less expensive than hiring a lawyer mediator.

If the issues are primarily financial, be it property division and/or support, you should hire a mediator who is also a family lawyer.

Is mediation right for me?

Mediation is an effective and less expensive method of dispute resolution than arbitration and going to court, but it isn’t for everyone. You should consider Mediation if:
• You are interested in out-of-court settlement;
• You want to try to maintain some type of amicable relationship with your spouse;
• You and your spouse will voluntarily provide each other with the relevant financial disclosure that you will both need to make good decisions;
• You want to try to limit the negative impact of your separation on your children;
• You want more control over your decisions

However, mediation may not be the right fit for you if the following is true.
• If either of you refuses to show flexibility on your position;
• If either of you is taking a position based on “principle only”;
• In some cases of intimate partner violence where the power balance can’t be rectified through other means;
• If either of you refuse to be transparent and forthcoming with your financial disclosure.

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