Family mediation services and family mediation is a voluntary way of resolving disputes where a trained mediator helps parties to resolve disputes about family issues. The mediator does not decide the case. Instead, the mediator helps the parties reach an agreement that is acceptable to both of them.
Mediators are usually social workers, lawyers, psychologists, or other professionals. When these professionals work as family mediators, their job is to help parties reach an agreement on support payments, the division of property, custody of and access to the children, or any other family-related issues. Usually social workers and psychologists are more focussed on resolving parenting issues. Lawyers are often more comfortable with the law as it relates to all of the financial issues, although frequently they address parenting issues too so the parties only have to use one mediator. John Schuman has been involved with custody/access and children’s rights cases for more than twelve years, so he is comfortable with mediating parenting issues. Mediators do not take sides or make decisions for the parties. They also cannot give legal advice.
A party considering mediation may speak to a lawyer before seeing a mediator. It is helpful to know the law and your rights and obligations before mediation starts. Sometimes parties take their lawyers with them to mediation, because they do not feel confident advocating for themselves, or they want legal advice during the course of the mediation to make sure the discussions are on the right track. It is also important for each party to review any agreement reached during mediation with his or her respective lawyer before signing it. Parties who use mediation still need to get Independent Legal Advice with regard to their settlement if they want to have a separation agreement that a court is likely to enforce.
Mediated agreements are not binding until they have been incorporated into a written agreement or a court order.Both parties should obtain Independent Legal Advice before the agreement is finalized to ensure they understand their rights and obligations, as well as the effect of the proposed agreement.
Generally, discussions about settlement are not admissible in court. However, Ontario has two types of mediation in family matters: open and closed.
In closed mediation, all discussions between the parties are confidential and cannot be used as evidence against either party, with very few exceptions (for example, where concerns arise over the welfare of a child). In addition, the mediator will not report to the lawyers or the court on the progress of the mediation or provide an opinion on the issues that have been discussed in mediation to anyone other than the parties themselves.
Open mediation means that the process is not confidential. With open mediation, the agreement to mediate, or mediation contract, may also authorize the mediator to prepare a report once the mediation finishes.
The mediation process is flexible and can take one session or many. The better prepared the parties are for a mediation meeting, the more productive that meeting will be. It is helpful if the parties have exchanged financial disclosure and figured out the specific areas of disagreement. However, if the issues are complex, a number of meetings may be needed to come to a resolution.
Mediators charge by the hour. The hourly rate usually depends on the type of professional and his experience. (John Schuman’s hourly rate is $425.00 and his retainer for mediations is $4000, which is shared by the parties.) The longer mediation takes, the more it costs. Some mediators also charge administrative fees in relation to the costs of conducting the mediation (obtaining a room, refreshments, access to some computerized Family Law tools, etc.) Devry Smith Frank does not charge an administrative fee in addition to the hourly rate.
Mediation is always less expensive than taking a dispute to trial through the courts.
Where mediators do not impose a decision on the parties, arbitrators do. The arbitrator is usually an experienced Family Lawyer, psychologist or social worker, who knows Family Law well, and also knows the law with regard to the procedure for conducting a formal hearing to decide issues between the parties. With arbitration, the arbitrator makes the decisions after reviewing the evidence of the parties.
The idea behind arbitration is that the parties pick their judge, who is known as the arbitrator. In picking an arbitrator, the parties can choose someone who has the same outlook or values as they do. The parties pay that arbitrator an hourly rate for his or her work. However, arbitration is still usually faster and less expensive than court, as the parties and the arbitrator can agree to streamline the process. Also, because the parties are paying the arbitrator, he or she often spends more time getting to know the parties and their situation. Judges are not always permitted the luxury of having a lot of time to spend on a particular case.
Mediation/arbitration is the hybrid ADR approach. As the name implies, it is a combination of mediation and arbitration. In this process, all of the earlier procedural steps that are found in a court case (Case Conferences, Settlement Conferences, etc.), are replaced by mediation. If the parties are unable to reach a resolution at mediation, then the same person who was the Mediator becomes the Arbitrator. When the parties decide that a mediated result is not possible, the Arbitrator makes a binding decision on the issues. However, the Mediator/Arbitrator cannot base his or her decision on what occurred at mediation. There must still be a formal arbitration hearing or, for temporary matters, formal motions. How those motions or the final arbitration hearing takes place is exactly the same as if the parties had decided just to go to arbitration.
Alternative dispute resolution processes are voluntary. Both parties must agree to use the alternative dispute resolution process. They must also agree on who the mediator or arbitrator will be and some rules that govern the process. To ensure that the ADR process is voluntary, the mediator or arbitrator must screen the parties for power imbalances or domestic violence issues that might allow one party to coerce the other. If the parties cannot agree on the ADR process, or if there is a power imbalance that means one of the parties is not entering the process freely, then the parties must go to court and follow the court’s procedures. Devry Smith Frank screens for domestic violence and power imbalances throughout the process (Ontario Law requires all mediators and arbitrators to do this.) The parties may need to have separate appointments or telephone calls with the mediator to do this screening. An arbitrator does not screen the parties for domestic violence or power imbalances to ensure the arbitrator remains impartial. Fortunately, there are several people at Devry Smith Frank who are trained to do this screening, so parties will not have to go someplace else to get it done.
Toronto law offices are conveniently located in the Lawrence and Don Mills area at 95 Barber Greene Road, Suite 100;
Whitby offices are located in the heart of downtown Whitby at 209 Dundas Street East, Suite 401;
Barrie offices are located downtown Barrie at 85 Bayfield Street, 3rd Floor.
We have plenty of free parking in all three locations.
Wendy Hubbard at 416-446-5093 or wendy.hubbard@devrylaw.ca
