Mediation FAQS

A Baker’s Dozen: Thirteen Q & As about Mediation

People whose relationships are coming apart need help at this critical time. If this describes your situation then mediation is one option for you to pursue. Not too many people are aware of it, but mediation is a voluntary way for couples to resolve disputes. Here are the most frequently asked questions about the process of mediation.

Why is mediation a better alternative for some couples?

Let’s take a common scenario: a couple no longer able to resolve their issues decides to part. Some couples can negotiate their own arrangement, but given the emotional upheaval this is difficult to do. Most people can’t do that: each one hires a lawyer and they enter the legal system in full confrontation. Their lawyers negotiate, but if no settlement can be reached, the couple ends up in court. This is an expensive route, one usually filled with emotional turmoil. But it doesn’t have to follow this path. If you can work with a neutral, third party who is skilled at helping people such as you, then you should seriously consider using a mediator.

Who are mediators, and what is involved in mediation?

According to the Ontario Family Law website, mediators are professionals such as social workers, psychologists and yes, mediators can be lawyers. Their role is to help both parties to reach a satisfactory agreement concerning such issues as support payments, division of property and custody of and access to children.

Is the process adversarial?

No, it isn’t. Mediators don’t take sides and they don’t make decisions for you. They can’t even give you legal advice. They perform one role only: to help you reach an agreement without going to court.

Do mediators replace lawyers?

Because mediators cannot give you legal advice, even though they might be practising lawyers, each of you should each speak to your own lawyer before during and after you see a mediator. As the government website advises, you should know the law and your rights and obligations before mediation starts.

Is mediation for everyone?

Mediation works for many people, but perhaps not all. It likely should be avoided in situations that involve violence, abuse, or when one person feels intimidated by the other.
However, if you’re able to express your thoughts and explain what you want for yourself and any children who might be involved, then you should consider the process of using a neutral third party, a mediator, to help you and your spouse resolve your issues without resorting to the courts.

Once the mediation begins, am I forced to continue with it?

In a word, No. You can stop the process at any time. As well, a lawyer can negotiate for you. And of course, you can always go to court if an agreement can’t be reached.

What happens if I sign an agreement and later I want to change it?

Once signed, a mediated agreement is legally binding, which is why both parties should review any mediated agreement with their respective lawyers. However, as with all agreements, there is a mechanism for future disputes, should circumstances change, for example.

How can I find a mediator?

There are several ways to find mediators. First, for family mediation services connected to Ontario family courts, visit:

www.attorneygeneral.jus.gov.on.ca/english/family/service_provider_by_
family_court_location.asp

For private mediation services, the Ontario Association for Family Mediation (page 52) or the ADR Institute of Ontario (page 53) will list mediators in the area you live. And finally, lawyers usually know the names of local mediators, and some lawyers are also practicing mediators.

Can my lawyer act as my mediator?

Lawyers engaged in the proceedings cannot mediate.

How can I evaluate the ability of a mediator?

Although there are excellent courses in mediation which offer certificates of completion, at the moment, there is no professional licensing organization for mediators. Therefore, when you find one you are considering, ask questions about the mediator’s training and experience. Don’t agree to use a mediator’s services unless you are fully satisfied.

Is mediation expensive?

Court- connected family mediation services are available for a fee based on your income, or free for cases that are in court on that day. Contact your family mediation service provider for more information about these costs.

Private mediators are in business for themselves and their fees can vary widely.

What is the difference between open and closed mediation?

In open mediation, mediators can write a report on what happened during mediation and can include anything that they think is important; this information is available to the court, should the case eventually go before a judge. In closed mediation, the mediator’s report can only state what agreement you reached or that you didn’t reach one.

What is the difference between a mediator and an arbitrator?

Arbitrators are licensed, recognized by the courts, and follow Ontario’s Arbitration Act, 1991. Arbitration can be thought of as a step half-way between mediation and the courts. Ultimately, once the two parties, together with the arbitrator, have set the framework for discussion, they then present their cases respectively to the arbitrator who will then decide on the terms of settlement. But this is a topic for another discussion. For now, we’re considering the path of mediation as a means of resolving separation issues as amicably as possible.

(Source: www.attorneygeneral.jus.gov.on.ca/english/family/familyla.pdf)

Please contact Howard Nightingale Professional Corporation to discuss how we can help you through the mediation process.