FREQUENTLY ASKED QUESTIONS ABOUT FAMILY MEDIATION

Q: WHAT IS FAMILY MEDIATION AND WHY USE IT TO RESOLVE YOUR DISPUTE?

A: Mediation is a form of alternative dispute resolution (ADR). It is essentially “a dialogue” between participants in the process, in a moderated setting. The participants in that dialogue are the parties to the dispute (either individuals, as in a family dispute, or groups or other entities), and the mediator, who maps out and moderates the dialogue based on unique skills. The parties can participate in the dialogue with or without counsel.

Family mediation is a dialogue, often over the period of time and in a number of sessions, about issues arising out of a separation or about issues originating in a breakdown of a relationship but arising sometime later.

The shared goal of the family mediation participants is resolution. The mediator is there to help, in a neutral role.

The principle of self-determination is fundamental to the family mediation process, which is also completely voluntary. Put another way, a person cannot be forced to participate in mediation if they do not want to, even by court Order. *

Each participant’s views and concerns are heard and respected. Each is given an opportunity to express their positions and interests. The process is designed to explore and, hopefully, address the very foundation of the conflict, so lasting solutions can be achieved through settlement.

Family Mediation allows the parties to actively participate in crafting their own settlement, on terms that work for each of them and both of them. This is not possible when a family court judge is asked to resolve a dispute between parents, for example, by court Order. In this instance, the parties lose an important measure of control over the outcome. Essentially, they are handing over the decision to a third-party, the judge. That is not the case in family mediation where both parties are, once again, active participats in the negotiations and, ultimately, joint authors of any settlement.

Family Mediation is not suitable for every case, and there ARE situations where court intervention is required. That being said, many, many family law disputes can be resolved through work with a skilled mediator, experienced in moderating and guiding the dialogue between the parties.

*but an earlier consent Order to participate in mediation can be enforced by the Court, absent power imbalance impediments.

Q: DOES THE MEDIATOR MAKE DECISIONS?

A: No - the parties themselves do that.

This is one of the reasons Family Mediation is often preferrable to other modalities of dispute resolution - the parties empower themselves and each other, with the assistance of the mediator, to make their own decisions - about their children, about their property, about support issues - about their own futures.

A private process (as opposed to public Family Court) in which a person selected by the parties makes decisions for them is called Arbitration.

Q: “DO I NEED TO HAVE A LAWYER TO PARTICIPATE IN FAMILY MEDIATION?”

A: No, at our office you do not have to have a lawyer at your side while you are mediating - but parties who are mediating family issues MUST obtain independent legal advice in advance of any mediation session(s), separately from one another, on their specific legal rights and obligations. With that information, with that knowledge, they are better able to mediate, and to understand the options available to them as to the possible terms of settlement. In that context, there is also a broader opportunity for creative solutions.

The Mediator (even though she is a family law lawyer) does not give legal advice to either of the parties. In the context of evaluative/directive mediation (which is an option available at our office), the Mediator can discuss with the parties the law applicable to the issue(s) in dispute and tell them of the likely outcome if the Court were involved in making decisions about an issue. However, that evaluative/directive function is different than the function of a lawyer providing legal advice of their client. The Mediator cannot, and will not, advise either party as to their legal rights or obligations, as compared with the rights and obligations of the other party. The Mediator cannot suggest to either party an appropriate course to protect their legal rights or to respond to legal obligations. To obtain that advice, each party must have their own lawyer.

Q: “I WOULD LIKE TO TRY MEDIATION BUT I AM WORRIED THAT MY EX WILL PRESSURE ME, THREATEN ME AND MAKE ME AGREE TO THINGS THAT ARE NOT WHAT I WANT. THERE IS A HISTORY OF SUCH PRESSURE IN OUR RELATIONSHIP. WHAT CAN I DO?”

A: A two-part answer is applicable here:
a) Pre-mediation “screening for power imbalance”, to ensure the case is suitable for mediation, is a vital and absolutely necessary element of the mediation process. The Mediator must ensure to the greatest extent possible that if the mediation proceeded, each of the parties would be participating in the process based on the principle of self-determination:- free of pressure, discomfort, duress and undue influence.

b) Not all mediation meetings, and not all portions of each mediation session, have to proceed with the parties facing each other (and in the case of a Zoom mediation, be on the screen at the same time). In appropriate circumstances, negotiations can proceed via “shuttle diplomacy”, meaning the mediator moves between the parties’ private breakout rooms (physical or virtual) without the parties actually meeting during the mediation session.

Q: HOW LONG WILL THE MEDIATION TAKE?

A: That depends on the number of issues being tackled, their complexity and the pace of progress.

No two family mediations are alike, truly. That is because each dispute between unique individuals is unique to itself. Some couples are able to make a lot of progress on their own, and they come to Family Mediation to address only points that remain in dispute. They already have a track record of being able to communicate reasonably effectively about issues arising out of their separation. Other couples have no such history and for this reason, the early portions of their mediation might have to focus on building up some trust, and sweeping out some cobwebs in their communication channels (if not reestablishing them altogether). The first couple of likely to resolve their issues faster than the second.

The parties, and their dispute(s), dictate the pace of the mediation process.

Q: “CAN WE ASK THE MEDIATOR FOR HER OPINIONS ON SOME OF THE LEGAL ISSUES, FOR EXAMPLE?”

A: In the classic mediation model, the mediator does not offer any opinions or even suggest solutions to the parties. The mediator’s only role is to guide the parties - through moderated dialogue, questions and answers, focusing on interests as opposed to positions alone, helping them to identify and consider possible solutions to the dispute and, hopefully, arrive at a mediated agreement.

“Directive” or “evaluative” mediation is one where parties have specifically empowered the mediator to express opinions on the various issues, based on the mediator’s legal experience but not in the form of legal advice, which the parties must obtain from their own lawyers. The mediator can also suggest potential ways of dealing with those issues.

The parties must agree on the above approach in advance (with each other) and specifically request that the mediator conduct the mediation on that basis. Again, the use of this mediation modality must be considered, and agreed on, in advance.

It is important for the parties to realize that in selecting the Directive/Evaluative modality, they are not expecting, nor will they receive, legal advice from the Mediator. She would not be “taking the side” of either party in offering an opinion as to a possible solution, for example. She would not be acting in her capacity as a lawyer. She would only be bringing her legal experience to the discussion to, hopefully, increase the likelihood of agreement and settlement.

Q: WHAT IS “Mettā”?

A: “Mettā” in Pali (or “Maitri” in Sanskrit) means loving-kindness, good will, amity, interest in the well-being of others. All those words and phrases describe my approach to mediation and my actual mediation model.

I am of the view that mediation truly succeeds only when the participants, including the mediator, express at least a willingness to be kind to themselves and to one another.

At first, the level of conflict may make mettā feel like a distant goal but with good will and commitment, on the part of all involved, resolution is possible.