There are many routes you can take to resolve issues that arise when your marriage breaks down. Taking your ex to court, contrary to popular belief, is not always the best method. Court proceedings are public, time-consuming, and can be expensive. Instead, couples may choose to negotiate a separation agreement between themselves through an alternative dispute resolution mechanism called mediation.
The mediation process helps you and your spouse reach a mutually satisfactory settlement with the help of a neutral third-party called a mediator. Mediators can be lawyers, mental health professionals, members of the clergy, or other professionals trained in alternative dispute resolution techniques. They can help you resolve issues related to family law, such as property division, spousal support, and custody.
At Gelman & Associates, our Toronto mediation lawyers have considerable experience representing clients in mediation as an alternative to litigation. Two members of our team are also distinguished and accredited family law mediators who can help couples find a fair and expedient resolution to a number of family law issues. To discuss the possibility of mediation for your situation, schedule a confidential consultation at our firm today.
You can call our Toronto office at (416) 736-0200 or fill out our online contact form now. We serve clients across Ontario.
What is Mediation?
Family mediation is a way of resolving disagreements amicably. A mediator is an impartial third party who helps separating couples identify common ground on which they can build a mutually satisfactory legal agreement. If agreement is not an option, a mediator can also help clarify which issues are sticking points. This can help streamline the process should the couple then go to court.
Mediation can cover a wide range of issues requiring resolution in a divorce, including:
- Division of family property
- The matrimonial home
- Child and spousal support
- Child custody and access
- Parenting plans
- Division of a family business
- And more
There are two types of mediation: open mediation and closed mediation. A closed mediation is confidential, and the discussions within the mediation cannot be used as evidence if the matter goes to court. An open mediation is not confidential. The mediator may even prepare a report after the mediation that could help a judge later on. You and your spouse can decide on whether the mediation should be open or closed before you start court proceedings and include that decision in a mediation agreement.
A client may go through mediation prior to seeing a family lawyer. Sometimes, mediators help the clients draft their Separation Agreement. However, because a mediator is not necessarily a lawyer and may not understand the nuances of contract-writing, it is often in a client’s best interests to have a family lawyer review and potentially the agreement.
The Benefits of Mediation
Mediation can be a beneficial alternative to litigation for several reasons. Most people tend to think of it as an economical option to traditional litigation, which can definitely be the case.
However, there are many other benefits to mediation, including:
- Self-Imposed Terms: People tend to follow agreements they’ve designed themselves. In mediation, the mediator acts not as a judge, imposing a ruling on the respective parties, but rather as a guide, helping each party to come to terms with one another. When the parties themselves have drafted and agreed to the terms, it is more likely they will adhere to those terms.
- Spatial Separation: In court, everyone is gathered in one place. This can make it difficult to manage negotiations when the parties are drastically opposed or if the relationship was abusive. Mediation between parties can be held in separate rooms. This allows the mediator to hold discussions with each party in person, but allows the parties the distance they need to stay focused on the task at hand.
- Remote Options: Mediation can be done remotely, if necessary. Sometimes it is not feasible for parties to gather in the same place. One party may have moved to another part of the country, or even out of Canada. In these cases, mediation can be managed entirely remotely, using teleconference technology. This may be particularly convenient for parties who find it difficult to take time out during the day to attend a third location, or have mobility issues.
- Faster Completion: Mediation allows a couple to expedite their legal proceedings, even when courts are backlogged. Due to long wait times, looking to alternative means of resolving your matter may be ideal that you can move on with your life sooner rather than later.
So how do you know if family mediation is right for you? Most issues in family law come down to how willing the parties are to collaborate. If one or both partners are unwilling to cooperate on any level, mediation may not be the right fit. If there is a willingness to collaborate, even with frustrations and other negative feelings in the mix, mediation might be effective.
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How to Prepare for Mediation in Toronto
Mediation works best when participants are prepared and ready to negotiate in a constructive manner. If you have decided that mediation is best in your circumstances, there are things that you can do in order to make the process as effective and efficient as possible:
- Select the Right Mediator. Both parties should identify a few qualified and accredited mediators and ask questions to determine their training, expertise, fees, availability, and mediation style. This will help you find the mediator that will best suit your needs and prevent any unpleasant surprises once the process has begun.
- Obtain independent legal advice (ILA): Mediators are there to guide you and your former spouse through the process of coming to terms in a separation or divorce. They are an independent party acting in the role of facilitator and will not provide legal advice to either party. For this reason, it is important to obtain legal advice from an experienced family law lawyer to ensure your rights are protected. You can also choose to have a lawyer represent you throughout the process if you wish.
- Identify Your Priorities: Make a list of each issue to be determined, and what you hope to achieve with respect to each one. This will help to ensure that you don’t lose sight of what is important to you and that no questions are left unanswered.
Your primary goal heading into the mediation process should be to achieve a constructive resolution. Criticizing your former spouse will only serve to prolong the process and will reflect negatively on you. Collaboration is key to an effective mediation.
Once there is an agreement reached on all outstanding issues, your mediator will record them in a Memorandum of Understanding, which will then need to be reviewed by each spouse’s independent lawyer. Once inspected and deemed acceptable, your respective legal representatives will draft a legally binding separation agreement that reflects the terms of the mediated settlement.
Mediation in Situations Involving Domestic Abuse
In a family situation where there is a history of abuse, mediation may not be recommended. The process requires collaboration in order to effectively negotiate, and if one party is intimidated or unable to properly voice their concerns, the process may end with an unfair result or may be ineffective. If you are in a situation where this applies, it is important to inform the mediator from the start. While this can be an uncomfortable topic to discuss, it is important that your mediator (and your legal representative) has a full picture of the situation.
At the start of a mediation, the mediator is required to check with each party to determine if there are any issues regarding power imbalances or domestic violence. They will ask questions about how the parties tend to communicate and whether there are any concerns ahead of the mediation process. If there is a power imbalance or safety concerns, the mediator can structure the process to ensure that both parties can fairly and freely advocate for themselves.
This might look like:
- Having parties remain in separate rooms throughout the process
- Staggering arrival and departure times
- Holding mediation proceedings remotely
- And more
If you are considering mediation and your relationship has a history of abuse or intimidation, the need for independent legal advice is even more critical. Having a lawyer there to represent you throughout the process and ensure that your interests are fairly considered is highly recommended
Is Mediation Mandatory?
Mediation is a voluntary process that should only be entered into if both parties consent and feel that they can cooperate in a negotiation that will result in a mutually beneficial agreement. Ontario judges can order mediation in a family dispute, but only with both parties’ consent.
If you enter into the mediation process and find it to be ineffective, or if you are unable to reach an agreement, there is no penalty for withdrawing. However, it is important to go into the process with good faith and an open mind. If a judge orders mediation and one of the parties refuses to effectively participate or makes negotiation impossible, they may find themselves liable for some or all of their former spouse’s litigation costs down the road.
How Can Our Toronto Family Mediation Lawyers Help You?
At Gelman & Associates, our Toronto mediation lawyers are committed to providing the support, structure, and advocacy you need to reach agreements outside of court. Mediation is meant to be a cooperative process, but having experienced legal guidance will help you make sure your rights are protected, the outcome is fair, and your agreement is sustainable.
Here’s how our legal team can help you:
- Explaining the Mediation Process: We’ll walk you through what to expect before, during, and after mediation so you can feel prepared and confident.
- Clarifying Your Rights and Obligations: Our experienced family lawyers will advise you about issues like property division, decision-making responsibility, child support, spousal support, and more, to ensure you can make informed decisions.
- Preparing You for Mediation Sessions: We will help you organize your priorities, documentation, and goals so that your concerns are understood clearly during negotiations.
- Negotiating Fair Agreements: While our lawyers can act as your mediators, they can also provide independent legal advice to you and/or your spouse during mediation. We will support you during discussions with your former partner, helping you reach practical solutions that align with your family’s needs.
- Drafting and Reviewing Settlement Agreements: When you reach an agreement, we will review your legal documents to make sure the terms are comprehensive, legally binding, and enforceable in Ontario.
Two certified family mediators work at Gelman & Associates. Paul D. Slan, one of our most senior lawyers, has been mediating family law disputes for more than 40 years. His experience and knowledge of the Ontario family law system allow him to guide spouses towards a fair and balanced settlement of their family-related issues through mediation, without resorting to the traditional court system.
In addition, Jennifer Shuber is recognized as an Accredited Family Mediator by the Ontario Association for Family Mediation and a Certified Specialist in Family Mediation by the Family Dispute Resolution Institute of Ontario.
Mediation Can Help Resolve Your Family Law Dispute: Contact Our Toronto Mediation Lawyers Now
Contact Gelman & Associates to learn how mediation can help you and your spouse resolve your family law issues in a cost-effective and low-conflict manner. Serving multiple locations throughout Downtown Toronto, Mississauga, and North York, our offices are easily accessible by transit and off-highway.
Our phone lines are open Monday to Friday from 8 AM to 8 PM. Call us at (416) 736-0200 or 1-844-736-0200 or contact us online for an initial consultation.
