A Step-by-Step Guide (Ontario)

Olivia Maley, Articling Student

Family mediation is one method of resolving family law disputes, and may be an appropriate way to resolve your dispute. Depending on the issues involved and the specific facts of the case, mediation may be preferable to litigating the matter in court, as it can often be cheaper and faster. This blog post provides an overview of the family mediation process.

Step One: Is Mediation Right For Me?

The first step of attending family mediation is determining whether mediation is appropriate in your specific case. If you have a lawyer, your lawyer can advise you on this issue. Generally, mediation is appropriate when the parties involved are able to communicate with each other regarding the issues and are open to negotiating with the other person and feel comfortable doing so. Mediation is generally not recommended in situations where there is a power imbalance between the parties (for example, if one party has committed domestic violence), although some mediators may feel more comfortable in their ability to protect against the effects of a power imbalance, particularly if the weaker party is represented by counsel.

Step Two: Finding a Mediator

If you determine that mediation is appropriate for your case, the next step is to find a mediator. There are several different organizations that offer mediation services, and many family lawyers offer family mediation services as part of their practice. Family courts in Ontario will often have court-connected mediation services (in Toronto, Mediate393), which offer both on-site mediation (providing mediation on the day of your court appearance, if your matter is also in court) or off-site mediation (where your mediator will be a roster member of the organization, and the mediation is conducted separate from any court appearance. Off-site mediation is generally paid on a sliding scale, based on income, and may thus be substantially more affordable than retaining a mediator privately. If you wish to privately retain a family mediator, the Ontario Association For Family Mediation maintains a list of qualified mediators. If you are represented by a lawyer, your lawyer may also have their own preferred mediators who they typically work with.

As part of selecting your mediator, you should review the qualifications and training of any potential mediators. The mediator you select should be well-versed in the issues that your mediation will be covering so that they can assist you and the other party in resolving your dispute, and you should feel comfortable working with them. Mediators come from a variety of backgrounds – many are family lawyers, but social workers and psychologists can also take further training to become family mediators. If you are using court-connected mediation, any roster member will have met minimum training qualifications and experience requirements set by the Ontario Ministry of the Attorney General.

Step Three: Prepare For Mediation

Once you have selected the mediator you wish to use, both you and the other side will meet separately with the mediator for an intake meeting. If your case is already in court, the mediator will review the court documents that have been filed, as well as completed mediation intake forms. The mediator will determine whether your case is appropriate for mediation (this is generally referred to as screening).

If the mediator is prepared to mediate your case, the next step is to determine what the mediation will look like, set out the rules for the mediation, and sign an agreement to mediate. During this phase, you and the other side, with the assistance of the mediator, will determine what issues the mediation will address, who will be paying for the mediation, and whether the mediation will be virtual or in-person. You will also choose between open and closed mediation. In open mediation, the mediation is not confidential, and the mediator may be called as a witness at any subsequent hearing. In closed mediation, the mediation, and the positions you and the other side take while negotiating, are confidential, and the mediator cannot be called as a witness at any subsequent hearing. In addition, you will also discuss what type of mediation the mediator will use. Many mediators prefer to use shuttle mediation, where you sit in one room, with your lawyer or support person, the other side sits in another room with their lawyer or support person, and the mediator moves back and forth sharing your positions. For many people, this may be preferable to sitting in the same room as the other party. These decisions will all be incorporated into an agreement to mediate.

Once the agreement to mediate is signed and the mediation fees are paid, the parties provide their financial disclosure, if the mediation involves support or property issues.

Before the mediation, your mediator may ask you to prepare a position statement, which is a document that sets out your position (what outcome you want) on each of the issues that you will be addressing in mediation. The mediator will review these statements and determine how to best work with you and the other party, based on your respective positions on each of the issues.

Step Four: Obtaining Legal Advice

Prior to attending the mediation, you should consult with a family lawyer regarding your case, if you are not already represented and attending the mediation with your lawyer. A family lawyer will be able to provide you with guidance on what kind of outcome they recommend agreeing to, and what outcome a judge could realistically order if your case were to proceed to court. The mediator is not your lawyer (even if they are a lawyer) and will not be able to give you legal advice on any terms to be included in an agreement stemming from the mediation.

After the agreement, any terms that you and the other party have reached an agreement on will be drafted into an agreement. Prior to signing this agreement, you should receive independent legal advice from a family lawyer on the terms of the agreement, so that you are entering into an agreement that is best for you and your family.

Some cases are able to completely resolve after one session of mediation; other cases may require additional sessions or may need to proceed to court.

Are you considering mediation as a way to address your family law matter? Our Toronto Mediation Lawyers are experienced in attending mediations with clients and negotiating to amicably resolve disputes. If you wish to meet with one of our Toronto Mediation Lawyers to learn more about the mediation process and whether mediation may be right for you, contact our intake team at (647) 352-4529 ext. 1 to schedule a consult.

Sources

https://www.ontario.ca/page/family-mediation