Mediation Services

At Rechtshaffen, Breitman, we are proud to offer mediation services to our clients. We want to help our clients understand the mediation process so that they can make an informed decision before choosing to resolve their family law disputes in this way. This article will address the most common questions and concerns expressed by clients considering mediation as a way of resolving their disputes. We hope that this article will help you to determine whether mediation may be right for your family!

What is family mediation?

Family mediation is an alternative dispute resolution process. This means that the spouses choose mediation because they want an alternative to going to court.

During mediation, the mediator works with the spouses to facilitate a settlement of the issues in dispute.

Generally, the goal is to help the spouses arrive at a fair settlement that is respectful of the entire family’s financial and emotional interests.

When a family includes children, our goal is also to help our clients understand that their relationship will not end with separation or divorce. It will merely change. No matter what their feelings towards each other personally, the parents will need to develop a working relationship. We provide resources which will equip our clients to develop a parenting partnership so that they can handle future disagreements respectfully.

Who can be a mediator?

A qualified mediator will usually have an advanced academic degree, as well as documented training and certification in mediation and/or many years’ experience in his or her profession. A designation from a provincial or national mediation association guarantees that a mediator has completed a rigorous training and screening program and has met that association’s high standards for membership.

Unfortunately, since mediation is currently an unregulated profession in Ontario, anyone can “hang up a shingle” without having the background and training required to do the job properly. As lawyers, we have seen many examples of “mediated” agreements which have been carelessly prepared, and which could potentially prejudice our clients’ interests. Be careful when choosing a mediator!

What does the designation “Acc.F.M. (OAFM)” mean?

Acc.F.M. (OAFM) stands for “Accredited Family Mediator – Ontario Association for Family Mediation”. Any mediator who holds this designation has completed rigorous training and has met the high standards for accreditation in Ontario and membership in this professional association. As well, in order to qualify as Accredited Family Mediators and maintain their designations, members of OAFM are required to maintain $1 million in liability insurance to protect their clients.

For more information on accreditation, check out the OAFM website at www.oafm.on.ca

Who should consider using mediation to resolve their disputes?

Mediation is more suitable for some couples than others. A competent mediator will complete a thorough screening process prior to agreeing to accept a couple into mediation. If there is a history of abuse or a significant power imbalance in the relationship, mediation may still be possible, but is not always the best option. It depends on the circumstances.

Generally, mediation works best for couples who are sincerely interested in resolving their issues fairly, respectfully, and in a non-adversarial manner. Even for the most amicable couples, mediation is challenging, but if they are committed to resolution, it will usually happen!

What are the advantages to using mediation instead of going to court?

There are many advantages to using mediation. For example:

  • It can cost thousands of dollars less than going to court, because the process is non-adversarial, less formal, more streamlined, and the couple usually shares the cost of the mediator.
  • Separation and divorce are far less stressful for children when they know that their parents are trying to work things out productively. Children usually experience a great deal of anxiety when their parents are involved in a bitter separation and/or litigation.
  • It is less stressful for the clients. Instead of being in an adversarial relationship and expending their energy trying to “beat” their spouse and deal with a confusing labyrinth of legalese and court procedures, they are engaged in a less formal, collaborative relationship where they are both trying to do what is best for themselves and the entire family.
  • Mediation is usually much faster; a court case can take years.
  • Mediation is private and confidential; court proceedings and documents are public and can be very embarrassing if they fall into the wrong hands.
  • Spouses tend to emerge from mediation on better terms with each other than those who feel humiliated and/or enraged by the court process.
  • Spouses set a precedent of working together and are better equipped to deal with future disputes.
  • In court, there is a winner and a loser. In mediation, the goal is for both spouses to be satisfied with the settlement.
  • Spouses tend to respect and adhere to agreements that they have had a part in creating in mediation, but often resent orders imposed on them by a judge.

I’ve already been to court. Is it too late to use mediation?

No! Many cases are referred to mediation following one or more appearances in court. Some people may need to spend a bit of time in litigation, and experience firsthand the frustration, expense, and delay of the system, in order to arrive at the realization that there has to be a better way!

Can you be my mediator and also be my lawyer?

This is a very common question and the answer (“no, never, not under any circumstances!”) is often misunderstood.

The reason this is not possible is that a mediator needs to be an impartial facilitator. In contrast, a family lawyer is an advocate for either one spouse or the other. It is impossible to be an advocate for one spouse, and an impartial facilitator for both spouses at the same time!

If this concept is not clear, just imagine how you would feel if you found out that your “impartial” mediator was going behind your back and also acting as your spouse’s lawyer, coaching your spouse to help him/her get the best deal possible out of the mediation, at your expense. Not exactly ethical, is it?

So, then, can’t you just be the mediator and the lawyer for both of us?

Usually, this is the question people ask immediately after we have answered the preceding question! The answer, again, is no. Again, lawyers have a mandate to act in the best interests of their clients and to get their clients the best possible outcome. Since what is “best” for one spouse might be what is “worst” for the other, it is impossible for a lawyer to act in the best interests of both spouses at the same time.

A lawyer who attempts to act for both spouses would therefore be placed in a clear conflict of interest and, for this reason, this conduct is explicitly forbidden by the Law Society of Upper Canada (the governing body for lawyers in Ontario).

But I still don’t understand…what is the difference between a lawyer acting for both spouses and a mediator acting for both spouses? You are a lawyer, aren’t you??

Although I am a lawyer by profession, when I take on a mediation case I am not acting as your lawyer, or your spouse’s lawyer, or the lawyer for both of you. When I take on a mediation case, I am acting as a mediator only. Lawyers and mediators have completely different mandates, codes of conduct, retainer agreements, and methods.

The following chart summarizes some (but not all) of the main differences between what I do when I act as a lawyer versus what I do when I act as a mediator.


As a lawyer, my job is to… As a mediator, I will…
Give legal advice to my client only. Provide general legal information or guidelines, or describe a range of possible court outcomes, but not give legal advice to either spouse. If independent advice is required, an appropriate referral will be made for a consultation with an outside lawyer or other professional.
Advocate or fight for my client only. Facilitate discussion of fairest and best possible outcome for both spouses.
At the end of the case, prepare and sign, with my client, my client’s spouse, and my client’s spouse’s lawyer, a binding separation agreement, which is a legal contract. At the end of the case, prepare a draft agreement called a “memorandum of understanding” which describes the tentative agreement we reached in mediation, and then send each person to a separate lawyer for independent legal advice so that each person can make sure the agreement is fair to him or her before signing. The spouses then sign the agreement in their lawyers’ offices. This process makes the mediator accountable, and ensures that each spouse has received private, individualized legal advice prior to signing.

OK, now I understand. But if we’re going to go for independent legal advice at the end (or, sometimes, along the way as well), why bother with mediation in the first place? Why not just use lawyers from the outset and forget about the mediator?

The answer is complex, but it is hoped that the following chart will provide some answers to this frequently asked question.

Mediation, with separate lawyers along the way and/or at the end Lawyers only
You participate in a series of face-to-face meetings where you and your spouse have an ongoing, facilitated, reciprocal conversation and issues can be resolved. Lawyers, if involved, are on the sidelines and often do not attend the mediation sessions, but are available for private consultation along the way. Lawyers give independent legal advice at the end, before a final agreement is signed. Lawyers are involved in every step of the negotiations. Initially, you meet with your lawyer to discuss your case; your lawyer then sends a letter to your spouse’s lawyer outlining your position on the issues in dispute; your spouse’s lawyer then receives the letter and looks at it within a few days (or weeks); your spouse’s lawyer then phones, or emails your spouse to discuss a possible response; once your spouse manages to return his/her lawyer’s message or email, and/or to meet with his/her lawyer, your spouse and his/her lawyer then formulate a written response (often after several drafts); your spouse’s lawyer then sends the written response to your lawyer; your lawyer is busy in court but within a few weeks manages to have a draft response ready for your review; the response then goes out; your spouse’s lawyer receives it (repeat ad nauseum for a couple of years!)…you get the idea.
Significant cost savings: Lawyers are consulted along the way for specific questions and strategic advice and to review the agreement at the end. Significant expense: Lawyers are intimately involved in every single aspect of the case, and charge for every minute spent.
If the mediator helps you reach a fair agreement, the lawyer may only need to spend a couple of hours reviewing the final draft agreement and may suggest only minor changes or no changes at all. Where two lawyers are involved in preparing an agreement together, the agreement may go through 10 drafts, while the lawyers argue about specific provisions, before it is finalized. Time is money, so this can be expensive!
If, during mediation, you need a referral to a lawyer, a mediator can refer you to a collaboratively-trained lawyer who will share the goal of settlement. If you just retain a lawyer and forego mediation, you run the risk of choosing a lawyer who is not particularly settlement-oriented. Even if your lawyer tries to settle, your spouse’s lawyer may be too busy to devote the time to this case, or may try to take a more adversarial approach.
The spouses share the expense of the mediator, who does the bulk of the work, and only pay separately for their own lawyers, who may not be involved except sporadically, and at the end. Each spouse is paying a lawyer separately, more frequently, for a longer time, and in a situation where more conflict is likely to arise. The overall cost is usually significantly more than the cost of mediation.

Is the mediator going to make decisions that will affect my settlement?

No. A mediator is not a decision-maker. There will be no final settlement unless both spouses agree to it, and until any agreement is ratified by independent lawyers following the mediation process. A mediator is an independent facilitator who is trained to assist the spouses in coming to their own agreement.

Another alternative to court and mediation is arbitration. Some people are confused by the difference between mediation and arbitration. Arbitration is a process in which an individual (the arbitrator, who is often a senior lawyer or retired judge) reviews each spouse’s position on the issues in dispute and then renders a final written decision which is just as binding as a judge’s decision. The authority for the arbitrator to do so is given by the Arbitrations Act and an arbitration contract which is signed by the spouses prior to the start of the arbitration.

Occasionally, mediation and arbitration are combined, and the same person who tries to mediate will arbitrate if the mediation doesn’t work out, but this is only done if the spouses agree to it in advance and sign a contract so specifying. It is less common than mediation.

Arbitration is like having a private judge at your disposal. Like mediation, arbitration has advantages and disadvantages, depending upon the situation.

What if mediation doesn’t work out and we end up in court? Will my spouse be able to subpoena the mediator’s records?

At the beginning of mediation, the spouses can choose “open” or “closed” mediation and the mediation contract will specify which option has been selected. If closed mediation is chosen, the mediator may not be called as a witness in court, nor can the records be used in court. The court will simply be informed that mediation was attempted and was unsuccessful.

There are advantages and disadvantages to both open and closed mediation, all of which can be discussed with your mediator prior to selecting one option or the other.

Do family mediators only deal with separations?

No. We can deal with any family-law related dispute. Another area in which family mediators are sometimes involved is the negotiation of prenuptial agreements or other kinds of domestic contracts. Couples sometimes disagree on how to deal with assets that one spouse is bringing into the relationship, or assets that one spouse inherits during the relationship. Often, a spouse will want to ensure that this property is kept separate from the family property which may ultimately be vulnerable in the event of a marriage breakdown. Obviously, if the clients are engaged or living together/married while negotiating, these issues must be dealt with sensitively and delicately!

For more information on prenuptial agreements, see our article, “When Should You Get a pre-nup?”.

How do I choose a mediator?

Investigate the potential mediators’ qualifications and then speak to a few to get a sense of their personalities and styles. Assuming that all of the potential mediators are qualified, and that your spouse is also comfortable with them, trust your collective gut instinct as to whether a particular mediator will be a good fit.

How do I get started with mediation?

The way it works in our office is this. After speaking with you and your spouse separately on the phone and determining that you are both interested in pursuing mediation, we send both spouses a package (by email, or by regular mail if requested) with some general information, an intake form, a blank mediation contract, and further instructions. Once you complete and return the package, the meetings can begin.

The first meeting is usually booked as a two-to-three-hour block. At the beginning, each spouse meets with the mediator separately (back-to-back), and then the three of us meet together. Most meetings following the first take place with all three of us together.

We try to arrange all meetings in two-to-three-hour blocks in order to maximize the opportunity to make significant headway. Our clients’ time is valuable, and they block time off work or arrange babysitting to travel all the way to our office, so it makes sense to devote as much time to them as possible in each session. If clients find themselves overwhelmed, however, we can take breaks as necessary.

What happens if mediation doesn’t work out?

In the unlikely event mediation does not work out, the mediation contract would end, we would return any unused fees, and the clients would be advised to retain separate lawyers in order to proceed with court.

Where can I get more information about mediation?

For an information package about the services we provide, please feel free to contact Rosanna Breitman at: rosanna@torontofamilylaw.com. You may also wish to check out the website of the Ontario Association for Family Mediation at www.oafm.on.ca for more information about mediation in Ontario in general.