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| Tom Dart |
Part one in this series (see below for the link) discussed mediation in the family law context. Part two continues the discussion, beginning with what happens after the parties meet with their chosen mediator, who decides if mediation is appropriate.
If the mediation is to proceed, in family law cases, the parties and the mediator must sign a mediation contract, which usually contains terms about whether the mediation will be “open” or “closed” and what topics are to be dealt with. Most parties prefer closed mediation because it usually provides the best atmosphere in which to accomplish an agreement.
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Open mediation is much more complicated because the parties have to consider what parts of the mediation are to be open and, more importantly, who will have access to what happens in the mediation and how that information can be used if the mediation is not successful.
The mediator is the one charged with the obligation of determining how the mediation should be conducted. If the parties are represented by lawyers, usually the mediator will hold a conference call with the lawyers to determine the issues and what information each party needs in order to be prepared to mediate, and set the date for the mediation and for delivery of “mediation briefs.”
These briefs set out each party’s position in the mediation and provide factual background and sometimes the law supporting a party’s position. The briefs from each party enable the mediator to understand the legal issues, conduct any research that the mediator thinks might help and figure out the best approach for the mediation.
Mediation is always a voluntary process, even if the parties sign a contract to go to mediation. Each party has the right to withdraw from the process at any time. The mediator can also terminate the process if it is clear that the parties cannot be moved to an agreement or if the process becomes unsafe for any reason.
The mediator is obliged to continuously screen for power imbalances and the possibility of violence or harm as the mediation goes on. Most mediators accept the cardinal rule that mediation should “do no harm” and if one party appears to be about to enter into a very improvident agreement, the mediator should terminate the mediation. At the same time, each party has the right to enter into any agreement they believe is best for them and their family, so this is a fine line to draw.
Once the parties reach an agreement, some mediators will draft an outline of the agreement for the parties. Most mediators, however, leave it to the parties to have their lawyers take what was agreed to in mediation and put the terms into a properly drafted separation agreement. In that case, if the lawyers are present during the mediation, they often draft a legally binding agreement and have their clients sign it on that very day.
In many cases, the mediator writes a report or memo about setting out in bullet point format the terms of the agreement for the parties to consider. This report is not legally binding until the bullet points are put into a properly drafted separation agreement, which only becomes binding when the parties sign it with full independent legal advice.
In mediations conducted under the subsidized mediation services provided by the province, the parties often do not have the funds to retain a lawyer to help them with the mediation. In such cases, a mediation centre will have a list of mediators on a roster who have agreed to help out as needed. The manager of the mediation centre will appoint a mediator from this roster. These mediators are not usually connected with the centre as employees or owners. They are contracted by the centre at an hourly rate prescribed by the centre. Individuals pay for these services on a sliding scale dependent upon their incomes.
In these court-affiliated subsidized mediations, the mediator can only give information about the law to help the parties make informed decisions about what they can agree to. This is most often interest-based mediation, as the mediator takes pains to ensure that they do not unduly evaluate a position that a party takes in the mediation without legal advice. If a party takes an untenable position, the mediator will likely encourage them to seek legal advice before an agreement can be reached.
The mediator should always have the parties together when they provide them with legal information so that they both get the same information at the same time and so that each party can have the answers to any questions they might have about the law. A mediator can never make recommendations or give legal advice to either of the parties. They can share ideas or options for the parties that have worked for others, but it is always up to the parties to come up with their own options and solutions.
Like any family law process, the mediator must insist that the parties give each other full and complete financial disclosure with which they can then decide how to divide their property and how support obligations should be determined. The mediator helps the parties understand what information they must provide to each other. This often takes time and the parties are often given a lot of homework to do between sessions.
More and more clients who do not have lawyers come to mediation directly and not through subsidized services. They want to do the negotiations themselves instead of paying lawyers to do it for them. The mediator then acts in the same manner as if the parties were working through the subsidized program.
In all cases where the parties are not represented by lawyers during the mediation, the mediator should never prepare the actual agreement for them. Preferably these are closed mediations that result in a mediator’s report as to the agreed-upon terms, terms that then need to be incorporated into a separation agreement prepared by a family law lawyer.
The mediator makes it clear to the parties that the report is not a legally binding document and the parties now must each obtain independent legal advice and have their lawyers create the final binding separation agreement for them. If either or both of the lawyers feel that a term should not have been agreed upon, the parties can then return to mediation with their lawyers to sort out any issues.
While mediation is not a process which can be designed for every case, it has a high level of success for a majority of cases. When compared to the alternative of the court process, it is far less expensive and usually creates a better road ahead for most couples than a contested trial decision might. It also empowers people to have more input in their own future and helps them create their own solutions to their problems, which, in turn, means that they are more likely to stick with the decision than they might if it were imposed upon them.
This is part two of a two-part series. Part one: A primer on family mediation.
Tom Dart, of Barriston Law LLP, is a family law lawyer, mediator and arbitrator. He is a member of the Ontario Bar Association and is past president of its family law section. Dart has been on numerous committees associated with reform of the family justice system. He has also written articles for presentation at seminars for the Canadian Bar Association and for other newsletters and periodicals in the area of family law.
The opinions expressed are those of the author and do not reflect the views of the author’s firm, its clients, Law360 Canada, LexisNexis Canada or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.
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