Forward-Thinking and Collaborative Family Lawyer Offering Mediation Services Throughout Toronto and Ontario
There are many routes to resolving the issues arising from the breakdown of a marriage.
Taking your ex to court, contrary to popular belief, is the least preferred route. Court proceedings are public, time-consuming and rather expensive. Instead, couples are more likely to negotiate a separation agreement themselves through an alternative dispute resolution mechanism. The most common method for resolving disputes is through mediation.
At Gelman & Associates, each of our lawyers has considerable experience representing clients in mediation as an alternative to litigation. In addition, three 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. Paul D. Slan, Jennifer Shuber and Carolyn Chambers are each accredited and experienced family mediators who can help guide couples through the mediation process in various family disputes.
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 allows him to guide spouses towards a fair and balanced settlement of their family-related issues through mediation, without resorting to the traditional court system.
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. Jennifer has also been appointed a Dispute Resolution Officer for the Superior Court of Justice in Toronto.
Carolyn Chambers is also recognized as an Accredited Meditator with the Ontario Association for Family Mediation. She prides herself on her ability to help families reach settlements that work for all parties, on their own terms.
We also have several lawyers trained in the art of Collaborative Family Law, which is another alternative to litigation. In collaborative family law, your representatives work together to help you and your former partner negotiate the terms of your separation in a manner that puts the emphasis on solutions that consider the needs of both parties. At Gelman & Associates, the following lawyers are trained in collaborative family law:
What is mediation?
The mediation process is a form of alternative dispute resolution, that assists you and your spouse in reaching a mutually satisfactory settlement with the help of a neutral, third-party called a mediator. Mediators can be lawyers, mental health professionals, 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.
What Issues Can Mediation be Used to Resolve?
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
Two Types of Mediation
There are two types of mediation: open and closed. 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 the proceedings and include that decision in a mediation 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, as illustrated below:
- 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. This can be an extremely helpful factor when it comes to adhering to the agreement. When the parties themselves have drafted and agreed to the terms, it is more likely they will adhere to those terms.
- Mediation can be held in separate rooms. In court, everyone is gathered in one place. This can make it difficult to manage when the parties are drastically opposed, or when there are elements of abuse in a relationship (see below for more on this issue). The close proximity can sometimes be a burden when trying to reach an agreement, as feelings and emotions can derail the situation. Mediation can be held in separate rooms in the same facility, allowing the mediator to hold discussions with each party in person, but allow the parties the distance they need to stay focused on the task at hand.
- Mediation can be done remotely, if necessary. During a situation like the current pandemic, physical distancing has become a key issue. The inability to gather in a courtroom has caused most non-essential litigation to be put on pause for the time being in Ontario. Even during ‘normal times’, 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 technology allows a mediator to facilitate a mediation just as they would if the parties were all in the same room. Technology even allows for participants to hold discussions ‘in private’, if necessary, by temporarily excluding the other parties from the conversation. Remote technology can even be seen as more convenient for Parties who may find it difficult to take time out during the day to attend at a third location, have mobility issues, or a number of other reasons.
- It allows a couple to expedite proceedings, even when courts are backlogged. Again, due to the pandemic, court proceedings are largely on hold. Once they resume, there will be an unprecedented number of people looking to resolve matters before a judge, meaning the waiting times for a hearing will likely be longer than ever. This is a great time to give serious thought to alternative means of resolving a matter so that you can move on with your life sooner rather than later.
Preparing for Mediation
Mediation works best when the 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. Mediation is a legally binding process; ensuring you are aware of your rights is key before you enter into any formal agreement. You can also choose to have a lawyer represent you throughout the process if you wish. ILA is especially important when there is an imbalance between the parties. One party may have more sophisticated business or financial knowledge, for example, which could help them gain an advantage in the negotiation process. For this reason, it is important for all parties to have their own lawyer carefully review any settlement agreement before it is signed.
- 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.
The Mediation Process
Mediators cannot give either of you or your spouse legal advice, despite the fact that the mediator might be a lawyer. They are not a substitute for having your own independent legal counsel. The mediator’s role is to help you and your spouse communicate with one another and reach agreement on issues in dispute, while your lawyer’s role is to make sure your legal rights are protected.
Once there is agreement on all outstanding issues, the mediator will record them all in a Memorandum of Understanding, which will then need to be reviewed by each spouses’ independent lawyer.
Once reviewed by your lawyer and the terms are deemed acceptable to both parties, your lawyer or your spouse’s lawyer will draft a legally binding separation agreement that reflects the terms of the mediated settlement.
Situations Involving Domestic Abuse
In a family situation where there is a history of abuse and/or bullying, 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 representative) have a full picture of the situation.
At the start of a mediation, the mediator is required to do a check with each party in order to determine if there are any issues regarding power imbalances or domestic violence. They will ask questions about how the parties tend to argue, and whether there are any concerns ahead of the mediation process. If there is a power imbalance or safety concerns at play, the mediator can structure the process to ensure that both parties can fairly and freely advocate for themselves. This may involve having the parties remain in separate rooms throughout the process so that all parties feel safe to speak up. The mediator may also stagger times that each party arrives or departs, so there is no chance of them running into each other in common spaces. In extreme cases, or in situations where an emergency order is in place, or as a matter of convenience, the mediation can even be held remotely so the parties never have to be in the same geographic location, or in direct contact with one another.
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, to ensure that your voice is heard, and 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. Further, 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.
Mediation Can Help Resolve Your Family Law Dispute: Contact Gelman & Associates
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 offices 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.