What is mediation?

  • Mediation is a dispute resolution process in which a neutral, impartial third party (the mediator) works with two people in conflict, in order to help them negotiate a fair resolution of the legal issues resulting from the breakdown of their marriage.

Is mediation the same as couples counseling?

  • No. In couples counseling, the goal is to work on the relationship so that the couple can stay together. In mediation, the goal is to bring closure to a separation by finalizing an agreement on issues like parenting, support, and property division.

At what stage of separation is mediation appropriate?

  • Mediation can work at any stage. Many separating couples choose mediation as a first step, but others choose to work with a mediator because they have grown dissatisfied with (or can no longer afford) the legal/court system, and are looking for an alternative process which they feel may better meet their needs and bring them closure more quickly

Is it true that mediation only works for “amicable” divorces?

  • Not at all. Many medium-to-high conflict families benefit from using mediation to resolve their differences. As long as both spouses want the conflict to end, feel safe in the process, are prepared to make full financial disclosure, and are open, in theory, to the idea of making an agreement with terms within the realm of what is legally reasonable, mediation can be a very effective process for any separating couple.

I’m worried that if mediation fails and we wind up in court, my ex may use the things I’ve said in mediation against me.

  • In an “open” mediation, this is a legitimate concern, but in a “closed” mediation process, nothing that is said in mediation may be used by either party in subsequent court proceedings. Generally, parties sign a contract with the mediator at the beginning of the mediation process; parties who want to make sure that nothing said in mediation can be used against them should insist that the contract state that the mediation is “closed”.

What are the advantages of mediation?

  • Mediation is generally far less expensive than a traditional legal process, and the mediator’s fee is shared equally between the parties. Mediation allows people to negotiate their own agreements, instead of having outcomes imposed on them by judges who do not really know their families. Mediation allows people to resolve their cases quickly and achieve closure, so that they can move on with their lives. Mediation is private, non-adversarial, dignified, and provides a venue for honest, productive, results-oriented conversations about what is best for the family. Mediation is confidential, and in closed mediation, participants don’t need to worry that what they say may be used against them in court.

What are the disadvantages of mediation? Is it ever inappropriate?

  • If a spouse is not really interested in settling, refuses to make full financial disclosure, or is being highly unreasonable, there is a risk that the time and money spent on mediation may be wasted. In rare cases, some people use mediation as a delay tactic where they have no intention of settling.

Toronto Family Law Blog

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