Alternatives to Court: Mediation - LawNow Magazine

Alternatives to Court: Mediation

Family Law ColumnIn the first column in this series, John-Paul Boyd introduced basic alternatives to resolving family law disputes in court. In the second column, I wrote about the Collaborative process. In the last issue, John-Paul Boyd explained arbitration. In this column, I’m going to talk about mediation.

Mediation is a process where you and the other person involved in a dispute meet with a neutral third-party, a mediator, who assists you to reach an agreement. The mediator’s role is to help you and the other person communicate civilly, express ideas in different ways, stay on track, and explore and consider options. You can think of a mediator as a guide, a translator, a coach, or a referee. The goal of a mediation is for you and the other person to reach an agreement. A mediator is not empowered to impose a solution on you and the other person. You are the decision-makers and responsible for the outcome.

Mediators can take a variety of approaches:

  • In facilitative mediation, the mediator makes informed suggestions to you and the other person to help you problem solve and assess various proposals. The mediator will focus on maintaining a fair process so you and the other person can communicate effectively.
  • In evaluative mediation, the mediator can give their opinion to you and other person about your positions. If the mediator is a lawyer, they might tell you if your suggestion does not align with the current law and predict the outcome if you took your case to court.
  • In transformative mediation, the mediator attempts to help you and other person find new ways of communicating and to develop skills to work together. The mediator helps you and the other person transform your interactions from destructive to constructive.

Mediators can have a variety of backgrounds. Many come from a social work or counselling background; others are lawyers. Each background brings a different skill set and you may want to give this some consideration when choosing a mediator. For example, if you are trying to reach a resolution about what kind of parenting schedule is best for your children, you might prefer someone who has training in child development or interpersonal relationships because the law is not complicated in this area; it is to do what is in your child’s best interests. However, if you are trying to sort out an issue that does involve more of a legal analysis, such as how to divide matrimonial property, it may be helpful to have a mediator with a legal background who understands the law in this area.

The mediator’s role is to help you and the other person communicate civilly, express ideas in different ways, stay on track, and explore and consider options.  You can think of a mediator as a guide, a translator, a coach, or a referee. Usually mediation is “closed” and done on a “without prejudice” basis, meaning that whatever is discussed in mediation cannot be raised in court. This allows for you and the other person to explore ideas and suggest compromises without being held to them if you do not reach an agreement. Your mediator should confirm whether or not you are proceeding on this basis at the start of your meeting.

Generally, mediators will not have private discussions with you or the other person. This ensures that the process is fair and transparent. However, sometimes it may be beneficial to take time away from the joint session to meet with the mediator to clarify an issue, reflect on the consequences of a decision, or vent your emotions. In this case, the mediator might decide to “caucus”, which means to have a private confidential meeting with you or with the other person. You might be concerned that caucusing could be used to sway a mediator to the other person’s “side”. However, since a mediator cannot make decisions for you, there is little advantage to having a mediator on “your side” or risk that they are on the other person’s side. The only person you have to convince is the other person in your dispute. Caucusing is simply one tool to help move forward. If you have concerns with caucusing, you can raise them and discuss the benefits or risks of using this tool.

As John-Paul Boyd noted in the last issue’s column, mediation can be combined with arbitration. An arbitrator can start by mediating, but if you cannot reach an agreement, they can make a final and binding decision that you both must follow. You and other person would have to agree to this process in advance and set out the “rules” that the mediation-arbitration process (sometimes called “med-arb”) would follow.

Mediation is usually a voluntary process. However, many courts require that you and the other person attempt at least one alternative to court before you can bring a court application or schedule a trial. So, you might try mediation to satisfy this requirement, without being fully invested in the process. This is missed opportunity. Reaching an agreement via mediation would not only save you time and money, but as with any alternative to court, it also usually leads to better outcomes. When you reach an agreement that works for you, and for your children, rather than leaving it to a stranger (a judge), it is much more likely to meet your needs and other interests. If you and the other person are the parents of children, it is important to preserve your relationship and learn how to communicate in the long term.

There are some situations that are not recommended for mediation. Family violence, substance abuse, poor mental health, or limited cognitive functioning will limit how successful mediation can be. In some cases, mediation may not be safe. Mediators are trained to screen clients to ensure that mediation is appropriate.

In Alberta, free mediation for parenting matters is available through the provincial government so long as one of the people earns less than $40,000 a year. If you do not qualify for this, or have other issues to address, you can hire a private mediator. Anyone can present themselves as a mediator. When choosing one, you may want to ask questions about their background and training. The Alberta Family Mediation Society and the ADR Institute of Alberta both provide a list of their members who have a minimum level of education and designations for those with more experience.

Authors:

Sarah Dargatz
Sarah Dargatz
Sarah Dargatz has been practicing family law since 2009. She is currently a partner at Latitude Family Law LLP.
 


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