Litigation of any type is costly and time consuming. This is especially true in Family Law where parties face heightened emotional stress and where high conflict situations can be dragged through courts for years and years.
As a result, Alternative Dispute Resolution (ADR) has gained popularity for Family Law disputes. Mediation is a particularly popular choice because it involves a voluntary process involving trained mediators who assist Family Law litigants to resolve their issues. Now, family Mediation services are available in family court locations by the Ontario Ministry of the Attorney General. Private third parties are also available. These third parties can assist parties with a number of disputes that can arise including child custody, access and support and equalization of net family property.
Although mediation is useful in theory and in practice, it is not intended to replace good legal advice. Mediation should not be the only step that parties take to resolve their Family Law disputes.
Mediators have a defined role which is relatively narrow. This is why, ideally, each party should get legal advice from an experienced lawyer before and after mediation. Mediators are restricted in their roles because they:
- Must be independent and neutral (i.e., they cannot take sides);
- cannot give advice to either party; and
- cannot make decisions for the parties.
Mediators are neutral participants by definition. They are not only lawyers but can also be social workers or psychologists.
Therefore, it is important for parties to speak to their individual lawyers long before they participate in mediation. Lawyers can help parties obtain legal advice about the governing law in their situations, get guidance on their legal positions, find out possible acceptable areas of compromise, as well the overall strength of their case. All of the steps, made with a lawyer’s assistance, are fundamental prerequisites to reaching a mutually agreeable mediated settlement. It should also be noted that lawyers usually do not attend mediation with their clients.
Moreover, the parties should obtain legal advice after the mediation process has been tentatively concluded. Any agreement reached between the parties should be reviewed by the lawyers to ensure that it reflects the desired resolution that was reached. Mediation is a worthwhile process and if pursued properly with legal advice, can eliminate costly time in court. It is neither a stand-alone process nor a replacement for good legal advice.