Everyone knows that litigation of any type can be time-consuming and expensive. In Family Law in particular – where high-conflict situations between the parties are heightened by emotional considerations – disputes can be dragged through the courts for literally years and years.
Not surprisingly, there has been increasing interest in Alternative Dispute Resolution (ADR) mechanisms for Family Law disputes especially. Amongst the options available, mediation is a particularly popular choice because it involves a voluntary process involving trained mediators who assist Family Law litigants to resolve their issues. Indeed, relatively recently the Ontario Ministry of the Attorney General has made Family Mediation Services available right in the family court locations, although private third-parties can be used as well. In either case, parties can obtain the assistance of these third parties to help them resolves disputes that arise in connection with relationship breakdowns, including child custody, access and support, and equalization of net family property.
But while mediation is a good idea in both theory and practice, it cannot be the only step that parties take to try to resolve their Family Law disputes. This is because mediation is not intended to replace good legal advice.
Rather, for each party in a dispute, mediation is a step that ideally should be “sandwiched” between obtaining legal advice from an experienced lawyer, before and after.
This is because mediators have a defined role, and one that is relatively narrow. Specifically they:
• Must be independent and neutral (i.e. cannot take sides);
• Cannot give advice to either party;
• Cannot make decisions for the parties.
(Indeed by definition mediators are neutral third-party participants in the dispute-resolution process; they are sometimes lawyers by training but equally often are social workers or psychologists).
As such, it is important for a couple considering mediation as an ADR option to speak to their individual lawyers long before they seek out the services of a mediator. By doing so, they can each obtain tailored legal advice as to the governing law in their particular situation, can get guidance on their respective legal positions, and can have the possibilities for acceptable areas of compromise flushed out for them. All of the steps, made with a lawyer’s assistance, are fundamental prerequisites to reaching a mutually-agreeable mediated settlement. (And it should also be noted that lawyers usually do not attend mediation with their clients.)
In addition, the parties must avail themselves of legal advice after the mediation process has been tentatively concluded: any purported agreement that is reached during mediation must be reviewed with the parties’ individual lawyers, to ensure that it accurately and comprehensively reflects the desired resolution that was reached.
The bottom line: Mediation can be a worthwhile process for resolving Family Law disputes. But while it can eliminate costly time in court, it is neither a standalone process nor a replacement for good legal advice.