A mediated separation or divorce can be an effective way for former spouses to resolve their family’s legal issues, but it’s vital that both parties buy into the idea for it to be successful, says Toronto family law lawyer and mediator Gary Gottlieb.
Mediation allows former spouses or common-law partners to settle their differences outside of court, either by working directly with a mediator or with the assistance of counsel. Couples can work out agreements on all relevant issues, such as custody, access, child and spousal support, property division, debt management and the matrimonial homes. The resolutions they generate in mediation will ultimately form part of the separation agreement.
“Many couples opt to formally end their relationship without going through what can often be a time-consuming and expensive litigation process,” Gottlieb says. “Mediation is a great tool that can help them save money and devise a plan tailored to the needs of their family.”
Mediation is designed to help separating couples and families reach agreements without the time, expense and stress of having to go to court,” says Dakota Murphey in a column for Mediate Canada.
“A specially trained mediator has a variety of techniques at his disposal to encourage communication and cooperation between couples, to help them sort out arrangements between them and to enable them to move forward,” she writes.
Legislative changes encourage alternate dispute resolution
The Ontario government is proposing new legislation to make resolving family legal matters easier, faster and more affordable. Bill 207, Moving Ontario Family Law Forward Act, 2020, also includes stronger language that encourages alternative dispute resolution.
“To the extent that it is appropriate to do so, the parties to a proceeding shall try to resolve the matters that may be the subject of an order under this Part through an alternative dispute resolution process, such as negotiation, mediation or collaborative law,” the bill states.
Gottlieb supports the idea and says it may help stem the backlog of cases in family law courts around the province.
“Many family lawyers and mediators are already on board with the idea of providing more efficient access to justice for people involved in family legal matters,” he says.
How does mediation differ from court?
In his more than 33 years serving as legal counsel in family law mediations, and cases where he is the mediator, Gottlieb says almost any matter can be mediated as long as there’s no history of domestic violence. Roughly one-third of his clients choose the less adversarial route, which enables them to address issues typically outside the court’s scope.
“In many of my mediated cases, we’ve been able to sort out issues that the courts won’t deal with, such as how grandparents and step-parents will be involved in the children’s lives,” he notes.
Gottlieb says it’s important to understand that mediators are neutral third parties; they do not advocate for either side but rather help facilitate discussion and negotiate an agreement on the issues in dispute.
Benefits of a mediated divorce
Beyond being a faster and more cost-effective alternative to court, Gottlieb says mediation can also reduce the amount of stress associated with ending a marriage or long-term union.
“The parties have more control over the process,” he says. “If you go to court, which is often what happens with high-conflict couples, you have to live with the order the judge imposes.
When both parties are committed to the mediation process, Gottlieb says it’s successful 99 per cent of the time. But if one person doesn’t buy into the idea or views the mediator as a quasi-judge who will lay down the law, it may be doomed to fail, he adds.
“A lot depends on the parties themselves and their desire to reach a compromise. When there’s a sense that one party has not been forthcoming with disclosure or is hiding something, trust equity is lost, and there will be no deal.”
DIY mediation or lawyer-assisted?
Separating couples have two options if they decide to mediate: they can hire a mediator both agree on to help them come up with a plan, or they can each be represented by legal counsel in mediation, Gottlieb explains.
“There are pros and cons to both approaches, and much of it depends on the people involved,” he says. “If the parties are both represented by lawyers who are familiar with and supportive of mediation, they can be very helpful. If emotions are running high, as often happens, counsel can take their clients into a separate breakout room to decompress, so the process stays on track.”
But if one or both lawyers don’t see the value of mediation or aren’t interested in creating a deal, Gottlieb says it will torpedo the negotiation efforts.
Strategies for selecting a mediator
Different mediators have distinctive styles: they can facilitate a conversation between the parties, or they can use a more directive approach, providing their opinions as to what would make the most sense in a particular situation.
“In my view, the more directive the mediator, the better your chances are for a successful mediation,” Gottlieb says. “I have found over the years that litigants who choose mediation rather than litigation are extremely cost-conscious and prefer to commit to the one or two days it takes to complete the mediation process.”
While facilitation is often a more organic process, and from a theoretical perspective, more productive, it will usually take much longer than the parties are prepared to withstand, he adds.
Just like preparing an application for a court-processed divorce, parties will have to produce financial statements and disclosure briefs outlining their interests before the mediation. Unlike court, they will have an opportunity to ask the mediator any questions they might have about what’s required in the paperwork.
“By providing the information to the mediator ahead of time, we can concentrate on the real issues and refocus the dialogue away from emotion to the practicalities of separating,” Gottlieb says.
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