By Cheryl Goldhart, Principal of Goldhart Mediation & Arbitration and Founding Partner of Goldhart Kenet LLP
1. Family Mediation: Let’s Get Started
Navigating the turbulent waters of separation or divorce can feel overwhelming. It’s a journey filled with complex emotions, tough decisions, and, often, a sense of uncertainty. That’s why we’ve created this essential guide to family mediation in Ontario, specifically tailored for spouses who are in the process of separating or divorcing and are seeking an alternative to court proceedings, such as family mediation, to resolve their family law disputes.
From understanding the basics of family mediation to exploring its benefits and how to prepare for family mediation, we’ve got you covered. So, whether you’re just starting to consider family mediation or are already in the process, this essential guide is here to help you navigate with confidence and clarity.
Let’s embark on this journey together, one step at a time. At Goldhart Mediation & Arbitration, we understand the complexities of these situations and are committed to providing compassionate, professional guidance to family law dispute resolution.
2. Understanding Family Mediation: The Essential Process for Resolving Family Law Disputes
Family mediation is more than just a meeting where you discuss your issues. It’s a comprehensive process designed to resolve disputes in a respectful and amicable manner.
Here’s what you need to know:
a. Definition
Family mediation is a process where a neutral third party, known as a family mediator, facilitates discussions between separating or divorcing spouses to resolve disputes. It’s a voluntary process, meaning all parties must agree to participate.
b. Difference from Litigation
Unlike traditional litigation, which can be adversarial and stressful, family mediation encourages collaboration and mutual respect. It’s a flexible approach that can be tailored to the unique needs and circumstances of each family.
c. Types of Disputes
Family mediation can be used to resolve a wide range of disputes. These include legal issues related to separation, such as parenting decisions, property division and child and spousal support.
d. Role of the Family Mediator
As a neutral third party, the family mediator’s role is not to make decisions or impose solutions but to guide the conversation and ensure that all parties have an opportunity to express their views and concerns. They help the parties explore different options and find a solution that works for everyone.
e. Voluntary and Confidential
Family mediation is a voluntary and confidential process. This means that all parties must agree to participate, and the information shared during the mediation process cannot be used in court or disclosed to outside parties without consent.
f. Control Over the Outcome
In family mediation, the parties have control over the outcome. They work together to develop an agreement that meets their needs and interests. This is different from litigation or arbitration, where a judge or arbitrator makes the final decision.
3. How Family Mediation Works: A Step-by-Step Guide
Understanding the family mediation process can help you feel more prepared and confident. Here’s a step-by-step guide to how family mediation typically works:
a. Initial Contact
The process begins with initial contact with the family mediator, often by counsel but by self-represented people, as well. This is an opportunity for you to ask questions and understand what to expect.
b. Individual Screening
This is followed by individual screening to ensure that the family mediation process is appropriate and safe for all parties involved. The family mediator will assess whether there is any history of domestic violence or power imbalance that could affect the fairness of the process. This screening is sometimes done by an independent third-party screener.
c. Preparation Meetings
During these meetings, the family mediator will help you prepare for the mediation sessions. This may involve identifying issues to be discussed, gathering necessary information, and setting ground rules for the sessions.
d. Mediation Sessions
The heart of the process these are the sessions where the family mediator facilitates discussions, helping the parties express their needs and concerns, and explore possible solutions. The number of sessions needed can vary depending on the complexity of the issues and the dynamics between the parties. In our experience, where parties are represented by legal counsel and appropriate disclosure has been made by both sides in advance, a very high proportion of cases can be resolved in a single day.
e. Documenting the Agreement
Once an agreement is reached, the family mediator helps document it. This document, often called a Separation Agreement, outlines the agreements made during the mediation process.
f. Making the Agreement Legally Binding
If the parties are not represented by legal counsel at the mediation session, they will then take the Separation Agreement to their respective lawyers to obtain independent legal advice and take the steps necessary to have it made legally binding. This ensures that the Separation Agreement is enforceable by law.
4. Choosing the Right Family Mediator: Key Considerations
Choosing the right family mediator is crucial for the success of the mediation process. Here are some key considerations:
a. Accreditations and Certifications in Ontario
Choosing a family mediator who is accredited and/or certified by an organization focused on family mediation generally indicates that the mediator has had particular training and met certain standards to facilitate the process effectively.
FDRIO – Although there are different organizations that may provide training for individuals to conduct mediations, the Family Dispute Resolution Institute of Ontario (FDRIO) is notable for its standards of practice, training and certification for family dispute resolution processes. Personally, as a member of the Board of Directors of FDRIO, I know that I personally take pride in (a) the standards that it has developed in the best interest of the public and (b) its particular focus in the area of family law to ensure that mediators trained and certified by it are sensitive to and appreciate those aspects of mediation which are unique to family disputes. A directory of its certified members can be found here.
Counselling Degree – In addition to the foregoing, it is worthwhile determining whether or not a mediator you are considering has any additional accreditations or certifications that may be helpful in resolving your family disputes. For example, I have a Masters degree in Counselling, which reflects particular expertise and skills I have in recognizing and addressing emotional dynamics and history of spouses when mediating solutions, as well as ensuring that difficult personalities, whether domineering, narcissistic or otherwise, do not the obstruct the parties from resolving their issues.
Law Society Certified Specialist – As with mediators, certification reflects that certain standards have been met with respect to lawyers. Since the issues to be resolved through family mediation are primarily family law matters, family mediators are generally lawyers who practice in the area of family law. Although all lawyers practicing in Ontario are licensed to practice by the Law Society of Ontario, lawyers are not commodities and not all lawyers are equal any more than all mediators are equal. The Law Society of Ontario has developed a Certified Specialist Program, which recognizes lawyers who have satisfied knowledge requirements and established standards of experience in their practice area and have consistently upheld exemplary standards of professional practice. A lawyer designated as Certified Specialist is a recognition that the designated lawyer is accomplished in their particular practice area and a leader in their field. As at the time of writing, there are 56 lawyers who are designated as Certified Specialists in family law. A directory of these specialists can be found here.
b. Why Experience Matters
In addition to certifications that reflect training and a certain degree of expertise, experience is a key factor in the effectiveness of a family mediator. An experienced mediator has seen and had the opportunity to handle a wide variety of different cases, deal with different types of conflicts, and work with diverse individuals and families, including high conflict and difficult personalities. They have developed a deep understanding of the dynamics of family disputes and the nuances of the mediation process. They can draw on their experience to manage complex situations, navigate difficult issues, and guide parties towards a resolution.
c. Mediation Style
Every family mediator has their own approach and style. Some mediators may take a more directive approach, while others may be more facilitative. Some may focus on the legal aspects of the dispute, while others may emphasize the emotional and relational aspects. It’s important to understand the mediator’s approach and style and ensure that it aligns with your needs and expectations.
d. Fees
Family mediation can be a cost-effective alternative to litigation, but fees can vary. Be sure to ask about the mediator’s fees upfront to avoid any surprises.
e. Comfort and Trust
It’s important to choose a family mediator with whom you feel comfortable and trust. You’ll be discussing personal and sensitive issues, so it’s important to feel that you can be open and honest.
f. Cultural Sensitivity
An understanding and respect for diverse cultural backgrounds is important in the mediation process. The mediator should be sensitive to cultural differences and able to facilitate a process that respects and accommodates these differences.
Prior to selecting a family mediator, see our more in-depth article The Family Mediation Essential Guide on How to Choose the Right Family Mediator.
5. Benefits of Family Mediation
Family mediation offers several benefits over traditional litigation:
a. Control Over the Process and Outcome
In family mediation, you and your spouse have control over the process and the outcome. You can tailor the process to your needs and work together to find solutions that work for both of you.
b. Confidentiality
Family mediation is a private and confidential process. The discussions that take place during mediation cannot be used in court or disclosed to outside parties without your consent.
c. Cost-Effective
Family mediation can be a more cost-effective way to resolve disputes than going to court. The process is generally faster and less expensive than litigation.
d. Preserves Relationships
Family mediation can help preserve relationships by promoting respectful communication and cooperation. This can be particularly beneficial when children are involved, and ongoing communication and cooperation are necessary.
e. Flexible and Convenient
Family mediation is a flexible process that can be adapted to fit your schedule and needs. Mediation sessions can be scheduled at times and locations that are convenient for you.
f. Comprehensive
Family mediation can address all issues related to separation and divorce, including parenting arrangements, child and spousal support, and property division. It can also address other issues that may not be covered in court, such as communication and parenting styles.
6. Preparing for Family Mediation: Tips for Success
Proper preparation can help ensure that your family mediation process is successful. Here are some tips to help you prepare:
a. Understand the Process
Before you start family mediation, it’s important to understand the process and what to expect. This includes understanding the role of the family mediator, the steps involved in the process, and your rights and responsibilities.
b. Identify Your Issues and Goals
Before you start mediation, take some time to identify the issues that need to be resolved and your goals for the mediation process. This can help you stay focused and ensure that all important issues are addressed.
c. Gather Necessary Information
You will need to gather and provide certain information during the mediation process, such as financial information if you are discussing property division or support issues. Make sure you have all the necessary information and documents ready before you start mediation.
d. Be Prepared to Communicate
Family mediation involves open and honest communication. Be prepared to express your needs and concerns and to listen to the other party’s perspective.
e. Seek Legal Advice
Although the family mediator can provide information and help facilitate discussions, they cannot provide legal advice. It’s important to seek independent legal advice before, during, and after the mediation process.
f. Take Care of Yourself
Family mediation can be emotionally challenging. Make sure to take care of your physical and emotional health during the process. This can include getting regular exercise, eating healthy, getting enough sleep, and seeking support from a counsellor or support group.
In preparation for your family mediation, see our more in-depth articles Navigating Separation and Divorce: An Essential Checklist for Successful Mediation and The 10 Big Mistakes to Avoid in Family Law Mediation.
7. Conclusion
Family mediation can be an effective way to resolve family law disputes in a respectful and amicable manner. With the right preparation and the right family mediator, you can navigate the process with confidence and achieve a resolution that meets your needs and the needs of your family.
If you have any further questions or require assistance with family mediation, family, arbitration or Rapid Resolution – the One Day Solution, please do not hesitate to reach out and contact me.
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Disclaimer: The information provided in this article is intended for general informational purposes only. It is not intended to be legal advice and should not be relied upon as such. Every situation is unique, and the information may not be applicable to your specific circumstances. If you require legal advice, please consult with a qualified legal professional. While we strive to provide accurate information, we make no guarantees, representations or warranties about the completeness, accuracy, or reliability of the information provided.
