Family Law Lawyer as Family Mediator
One issue many people find confusing is the role in Family Mediation of a mediator who also happens to be a family law lawyer. Boy, that is a mouthful but it's the only way I can think of expressing what I need to say.
From my perspective, it is of great benefit to the mediating parties to have a mediator who is a family law lawyer. Why? Because that mediator can provide the parties with information about the issues they want to tackle, from a legal perspective. Not advice but information.
The distinction is very important. Here is a practical example. A mediator who is a family law lawyer can explain to the parties, in hypothetical terms, how table child support is calculated in Canada, based on the Child Support Guidelines. That mediator can even show the parties a SupportMate calculation and point out the various elements/inputs that are used to determine the amount. The same can apply to section 7 expenses. What the mediator cannot do is suggest in the context of the discussions what one party’s income for support purposes might be, particularly if they are self-employed, for example. That is an issue that party will have to tackle with their lawyer because that determination will involve an element of legal advice, which the mediator cannot provide.
By way of another example, a mediator who is a family law lawyer would be able to explain to the parties, in hypothetical terms, how equalization of family property works in Ontario (property division), based on the provisions of the Family Law Act. In contrast, that mediator would not be able to advise either of the parties about issues related to a pension, for example, potential taxes on that pension or what value should be ascribed to it. Those are legal issues which would require legal advice and a dialogue between each party and their lawyer.
On several occasions now, as a family law lawyer, I have met a party who was part of a mediation and told that on separation, “all property goes into the pot and is divided”. That is not how property division in Ontario works. A mediator who is a family law lawyer would be able to explain that to the parties.
PHOTO: taken by me at Singapore Botanic Gardens
©AJJakubowska
