Instead of litigating the issues arising from separation, separating spouses can choose to agree to mediation.  Mediation is a voluntary, confidential and private process conducted by a neutral and trained third party mediator.  It provides parties the opportunity to custom make their own solutions to both financial and parenting problems and is a great way for parties to save both the emotional and financial cost of litigation.  Mediation can take place at any stage of the legal proceedings, that is before court applications have been commenced or at any stage of the court actions, even mid trial. All lawyers are required to advise clients about mediation prior to commencing applications for divorce.

Prior to the mediation, the mediator will require the parties to sign a mediation agreement that sets out the issues to be resolved and the terms by which the mediation will be governed.  Mediation may be done either with or without lawyers.  If financial issues remain to be determined, the parties and the mediator may also agree that the parties should complete the exchange of financial disclosure prior to the mediation.  Generally the parties  exchange a mediation brief that sets out each parties position and a proposal for resolving the issues in advance of the mediation and that brief is provided to the mediator.

Mediation often begins with all parties in the same room, where the mediator will explain in person how he or she will conduct their mediation process.  Typically, the mediator will explain very clearly that all negotiations during mediation are essentially settlement discussions and cannot be referred to in court if the mediation fails.  The mediator will also explain the extent to which he or she will share with the other party information that is given to the mediator when meeting alone.  Generally speaking the mediator will also explain that until there is a signed agreement the matter is not finally settled.

The mediation may then proceed in a number of different ways but often the mediator separates the parties into two separate rooms either with his or her own lawyers if that is applicable and speaks to each party separately to get an idea of the family’s circumstances and what each party hopes to accomplish.  Following the initial meetings with each party, the mediator will often give the parties some time to come up with a proposal to resolve the issues. They will then bring each party’s proposal or counter proposal to the other party.  The mediator will discuss the other party’s proposals to try and see if there are any issues on which the parties might be able to come to an agreement.

The mediator is obligated to remain neutral and cannot favour one party over another.  However, a good mediator will point out any weaknesses in a party’s case as they see it.  A mediator is obligated to ensure that any agreement is reached in a voluntary manner and not as a result of coercion or intimidation.  Part of the training of mediators is the recognition of power imbalances that may occur as a result of the history of the relationship.  If the parties are not represented by lawyers, the mediator will encourage parties to retain a qualified lawyer to review any mediated agreement involving legal issues before it is signed.  Many mediations are done with counsel in attendance to assist.

Some of the advantages to mediation are that the parties can keep the dispute out of public court proceedings, the process is often quicker and thus less expensive than court proceedings because the procedural requirements are less rigorous, and the parties have an opportunity to find creative solutions to difficult problems and have some control over the final mediated result.  The court process, particularly if a case is case managed, uses judges to act as mediators, however the reality is that judges simply do not have the time or the resources to devote to mediation that a privately retained mediator may have.  However the parties must make arrangements to pay the mediator’s fees, whereas a judge is paid by taxpayers. Some mediators will operate on a sliding scale in order to ensure that the process remains affordable.  Although there are no guarantees that a mediation will be successful, ultimately it is a very useful and efficient process that can be used to resolve all sorts of issues to the satisfaction of the parties.  The parties have more say in the crafting of a solution to whatever the problem might be than in the more traditional problem solving models of litigation.

Esther Lenkinski
Lenkinski Law

Esther is a Certified Mediator and Lawyer in Family Law. To learn more about Esther please click


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