Lawyers, social workers, and judges encourage mediation as an alternative to litigation through the court system. Mediation is a process through which a neutral third party helps the participants reach their own agreement. Many mediators have professional experience as lawyers, social workers, and psychologists. Mediation allows the participants to explore settlement options that may satisfy all sides and to customize a settlement that reflects the unique situation they face. It is thought that this active participation in the resolution of the dispute results in agreements that parties will more likely implement and respect. A mediated process and resolution can be very different than a decision imposed by a judge. A judge’s decision is imposed on all parties and may not satisfy any of them.
A mediator’s role is not akin to that of a lawyer in litigation. The mediator will not represent any side. The mediator will not provide legal advice to any party. The mediator has no personal stake in the outcome. The mediator’s objective is to help the parties come to a final agreement on all issues. It is a task that consists of several challenges, including:
- Creating a safe psychological and emotional environment where each party is heard without prejudice or judgment
- Allowing and empowering every participant to freely express his or her position and interests
- Identifying the contentious issues underlying the dispute
- Encouraging the parties to understand and express the reasons for holding their positions
- Helping each party to see and understand where the other party is “coming from” emotionally and psychologically
- Suggesting compromises and alternatives when discussions reach impasse
- Encouraging parties to develop their own solutions
- Reinforcing the parties’ desire and commitment to mediate, and
- Helping the parties to understand their alternatives to a mediated resolution, which may include costly and lengthy litigation in the courts
Mediation is almost certainly less expensive and faster than litigation in the courts. The parties generally split the costs of mediation equally between them. Payment of the mediator’s fees is sometimes an issue that is addressed in the negotiated settlement. Not all participants are represented by lawyers. Even parties represented by lawyers generally save money by participating in mediation compared to litigation. There are a number of steps involved in court litigation that result in significantly greater costs:
- Many meetings with lawyers
- Getting your story and position down in the form of an affidavit or preparing to testify
- Gathering, reviewing, and organizing material to disclose to other parties, including financial documents, letters, notes, and assessments
- Drafting court documents, including petition for divorce, application, or statement of claim, and responding materials
- Researching legal issues
- Drafting, serving, and filing information for the court to support your position and claims
- Attending court, including time while your lawyer is waiting for your matter to proceed, and
- The court’s filing fees and your lawyer’s disbursements
In litigation, each party must pay all of those expenses for themselves. In mediation, the parties split the costs of the mediator. As a result, mediation tends to be much more cost effective. In family court proceedings, there are also free mediation services available.
When is a mediator chosen?
Parties may choose to participate in mediation from the outset or after a proceeding has been commenced. In some jurisdictions and proceedings, mediation is mandatory. In other cases, it may be suggested to the parties by a lawyer or judge. Timing of mediation is less important than the participants being willing to participate, compromise, consider the issues from other perspectives, and sacrifice something to achieve a mutually agreeable resolution.
Not every case is appropriate for mediation. Disputes characterized by significant hostility or starkly diverging positions may not be suitable. Having said that, parties who are far apart at the beginning of a litigation may find themselves willing to mediate after becoming exhausted from or disappointed with the litigation process. Family disputes that include a history of violence, abuse, or stark imbalance of power would only be suitable for mediation with careful legal advice and representation.
Where to find a mediator
Your lawyer may be able to provide referrals. In addition, there are a number of private alternative dispute resolution services that maintain rosters of available mediators. Alternative dispute resolution services can be contacted directly by telephone and can also be found online. The situation is somewhat different if you are participating in a mandatory mediation as part of an ongoing legal action. In that case, the Ministry of the Attorney General maintains rosters of mediators who a part of that mandatory mediation stream.
Do I still need a lawyer to mediate?
Spouses who decide to mediate their disputes should still obtain legal advice. Your lawyer will ensure that you are aware of your ongoing rights and responsibilities. Family law disputes can be complex, particularly as they relate to children, support, financial affairs, and the division of property. A lawyer will also explain the legal consequences of any settlement proposal you are considering. No agreement reached at mediation is final until all parties have had an opportunity to receive independent legal advice.
Spouses who feel capable of resolving their disputes with the assistance of a neutral party may find mediation to be an attractive, appropriate, and cost-effective alternative to litigation.
What is Divorce Mediation, or Family Law Mediation
Family Dispute Resolution: Several Options