What is Family Mediation?
Family mediation is a voluntary process for separating spouses or common-law partners, or even former partners looking for a change to their previous agreement, instead of or before they go to court. A neutral third party—the family mediator—helps the spouses or common-law partners to negotiate a mutually acceptable agreement, which is then reviewed by two independent family lawyers and turned into a binding Separation Agreement.
Our trained and accredited family mediator, Ajax and Whitby family lawyer Stephanie Feld, knows family law and uses this knowledge and experience to inform clients what their respective outcomes may be, and conversely what their options are if they are unable to reach a settlement through family mediation. Family mediators encourage both sides to be honest, open, frank, and considerate of each other.
A signed Separation Agreement is the goal of family mediation. For separating married spouses, the Separation Agreement clearly spells out how they will provide for their children, including Child Custody and Parenting Time (formerly called Access), Child Support, Division of Net Family Property, and Spousal Support.
Family Mediation can also be used for common-law couples to reach a Separation Agreement, but the courts have respected the couple’s decision not to marry. Property rights of separating common-law couples are not the same as married couples. Read our section on Common Law Separation.
Family mediation is not suitable where there is a power imbalance or there is domestic violence present—actual or threatened. If that is your situation, please read our Restraining Orders and Emergency Orders Section.
How Does Family Mediation Work?
Together, separating spouses or common-law partners hire a family mediator—often a lawyer trained in specific family mediation techniques—who discusses the interests and issues of both sides and helps them to express their goals for settlement.
Family mediation helps them to discover the options available to resolve the issues stemming from their relationship breakdown. The objective of family mediation is to reach an agreement, an amicable resolution that is acceptable to both sides.
The family mediation process starts with the family mediator having an intake appointment with each client, separately, to discuss their goals and expectations for the process and the result.
After those individual appointments, if the clients and family mediator agree that family mediation is the right fit, a number of family mediation sessions will be scheduled. These can be structured in various ways and will be tailored to the needs and preferences of the clients involved. Our accredited family mediator, Stephanie Feld, will guide you through the process.
Rather than the court-based separation and divorce process, married couples or couples living common-law, or even ex-partners who need to change an old agreement or court order can use family mediation to help settle issues such as:
- Decision-making (formerly called “Child Custody”) regarding the child’s or children’s health, education, religion and general welfare;
- Parenting time (formerly called ‘access’) with the child or children, including holiday and summer vacation schedules;
- The amount of Child Support payable, the payment schedule, and what is or is not a special/extraordinary expense (often referred to as Section 7 expenses);
- The entitlement to Spousal Support, the amount of such support and the payment schedule and duration;
- The Dividing Property and Financial Assets including investments, pension savings, vacation property, businesses, et cetera; and,
- What to do with the matrimonial home – sell it, keep it for a time, etc.
Call or email us now. Our family mediator can help you get started on a better future.
Family Mediation is Completely Confidential
You can have your own lawyer present during a family mediation, or not. Whether you have a lawyer accompany you or not will impact what the family mediator provides at the end of the process.
Specifically, if both parties have lawyers, the family mediator will prepare a Memorandum of Understanding (MOU) setting out the terms of the resolution reached and one of the parties’ lawyers will use it to help prepare a comprehensive Separation Agreement.
If the parties do not have lawyers, then our family accredited mediator Stephanie Feld (because she is also a family law lawyer) can prepare a comprehensive Separation Agreement for each party to take to a lawyer of their own choosing to obtain independent legal advice with respect to all of the terms of the Separation Agreement, and the long-term impact of each of those terms. Stephanie will explain these to you.
Again, clients are encouraged to be open and honest during the family mediation process, which is not always the case when parties negotiate through lawyers only or pursue Court proceedings.
An important aspect of family mediation, therefore, that unless both clients specifically instruct the family mediator that they want to have “open mediation,” the mediation will be closed. What that means is that the family mediation will be a completely confidential process, and anything anyone discloses in mediation cannot be used against them in a Court proceeding if family mediation does not result in a final settlement.
In fact, that same family mediator cannot be compelled to testify against you in Court about what either party told them about their finances, motivation, et cetera. A family mediator can only testify that the parties participated in a family mediation process, but there was no resolution.
Call or email us now, to get your family mediation started.
Why M.G. Michaels & Associates for Your Family Mediation?
There are social workers, psychologists, lawyers, and untrained individuals who claim to be family mediators; there is presently no requirement to be certified.
That said, there is an accreditation process that several family mediators undergo which involves schooling, testing, and then a type of internship which involves both observation of family mediations performed by a certified family mediator and then being observed by that same family certified mediator while conducting several hours of family mediation in their own right.
The two professional associations that confer certification to family mediators in Ontario are:
- Alternative Dispute Resolution Institute of Ontario (ADRIO)
- Family Dispute Resolution Institute of Ontario (FDRIO)
Stephanie Feld is an accredited family mediator who successfully completed all the components necessary to provide family mediation services. And you receive the added benefit of her training and experience in the ever-changing area of family law.
Where Family Mediation Can Fail, or is Inappropriate
Where family mediation does not work is where one (or both) parties are focussed on “winning” at all costs. Family mediation is about achieving a mutually agreeable settlement, with some “wins” and some “losses” otherwise known as compromises.
Sometimes there might be a power imbalance between the parties, or there is a history or the possibility of family violence, child abduction, or where one parent has mounted a campaign of alienation against the other parent. That strongly suggests a lack of respect by one spouse toward the other, or perhaps by both spouses toward each other.
If both parties are prepared to set aside their bad feelings toward one another, and listen carefully to one another’s goals and settlement wishes through the family mediator going back and forth between the parties in separate locations, family mediation can still be a good option. However, if one spouse is in jail due to family violence, or one spouse is intent on “winning,” then mediation is not a good option.
Other times when family mediation may not be appropriate:
- When one party is unwilling to compromise on anything;
- When one party puts themselves first, instead of their children;
- When one party only knowns how to exist in the relationship by continuing to fight, on every single issue that needs to be settled between the two of you; and,
- Where a stubborn, uncompromising spouse or common-law partner needs to be told by a Judge that they are being unreasonable. Unfortunately, this may cost both parties tens of thousands of dollars.
Family Mediation Can Help You in 8 Important Ways
Family mediation can help you in these important ways:
- It is more cost-effective than going to Court to try to resolve your issues.
- It is faster than “going to court.”
Family court is renowned for having a huge backlog of cases to be heard. It is not unusual to wait up to four months (since COVID, that has increased to approximately one year) for the first available judicial court date.
- Your dispute remains private and confidential.
This matters more to people who are politicians, celebrities, public figures, renowned artists, and so on, who want to keep the details of their separation and finances private in Canada’s “open court” legal system.
- As Ajax and Whitby family law lawyers and family mediators, we can create a final Separation Agreement that once signed, is an enforceable and legally binding contract. Our skilled and accredited family mediator, Stephanie Feld, can help.
- It keeps control of your future as a separated family unit in the hands of you and your partner.
Having gone through the court-based adversarial process, many people find that they not only dislike having a decision imposed on them by a Judge, but that they resent it, too. Once a Judge makes a decision, both sides are stuck with it, even if it is not what they feel is best for their separated family. A Judge’s decision may not be suitable or convenient. Family mediation allows you to have control and to decide for yourselves what is best for each of you as well as your children. It is voluntary and either of you can always stop the process if it does not feel right for you.
- It often helps to improve communication between the parties, who learn to be better co-parents after family mediation has finished.
While the traditional court process for separated spouses tends to build animosity and resentment through accusations, the ‘blame game,’ legal arguments and court paperwork, family mediation takes the opposite approach. Clients are encouraged to work together toward a resolution. This improves communication and cooperation skills, even when in conflict, which often teaches parents how to work together better after resolution of their separation issues. A skilled family mediator makes all the difference.
- Children’s wishes may be considered in the process.
The family mediation process allows for children’s views and preferences to be ascertained and considered in an informal manner, when both parents agree that it would be appropriate to do so. While children are never given an outright choice in where they wish to live, family mediation can allow children to express their voice and have a say in the new parenting regime. Recent research has shown that children, especially when they reach a certain age and maturity, can benefit from being included in the process.Family mediation can allow a child’s voice to be heard in a safe and informal manner, which is not possible in the traditional court process. Knowing a child’s opinion can also help parents come to a resolution, especially in cases where the child may be telling each parent something different in an effort to “be fair” or reduce conflict.
- Gives the parties greater flexibility and reduces their stress by giving them the option of mutually agreeing on dates and times (rather than having them assigned by a Court), or choosing Zoom over in-person meetings, et cetera.
Call or email us now. Our family mediator Stephanie Feld can help you get started.
Ways to Get to a Signed Separation Agreement, Including Family Mediation
Here is a comparison of both cooperative processes, including family mediation, and adversarial processes, to get to a signed Separation Agreement.
If you and your former spouse are respectful of one another, you may be able to reach an agreement directly, without the involvement of family lawyers.
Family lawyers may still be necessary to draft a legally binding Separation Agreement and ensure that is made on an informed basis and includes all of the necessary aspects, which many unrepresented individual are not aware of.
Family mediation is a voluntary process where a neutral third party assists the parties in negotiating a mutually agreeable agreement.
This agreement can then be turned into a legally binding Separation Agreement, either by the family mediator themselves if they are also a family law lawyer, or by your own family law lawyers.
Either way, both parties should have their own lawyers to provide independent legal advice prior to signing a Separation Agreement.
Family mediation is voluntary which means that either party can stop the process for any reason at any time. And, because it is closed, parties are safe to negotiate and make offers without fear of later repercussions if a resolution is not reached.
Nothing discussed or said in family mediation can be mentioned later on.
Collaborative Family Law
Collaborative law is a form of voluntary, lawyer-assisted negotiation between former spouses, and is unique in that it involves a pledge by both parties not to go to court.
It often involves other professionals as well, such as financial and family professionals who are generally accountants and social workers who assist in sifting through the financial information in greater depth than any lawyer would/could, and can meet with children to obtain their views and preferences (age-depending) and help keep the parties and lawyers behaving well and reasonably.
This can be a good solution for many families, however, the downsides are that the hiring of multiple professionals can be costly and if a resolution cannot be reached, both parties have to start the process fresh with new lawyers because of their previous pledge not to go to court.
The traditional form of lawyer-assisted negotiations are conducted by the parties’ lawyers, with a focus on what each believes a judge would decide if the case went to court.
Once a resolution is reached, the lawyers will draft a legally binding Separation Agreement to be signed, or will have a consent Order granted through the court.
If an agreement is not reached, one of the lawyers will likely begin a court process.
This process could either result in a quick resolution or may be very time-consuming and costly depending on the effectiveness and length of the negotiations or court proceedings.
Arbitration is a voluntary process where the parties agree to give a neutral third party the authority to make binding decisions about the issues that are in dispute; essentially, hiring a private judge.
Decisions made by the arbitrator are just as legally binding as if they were made by a judge at court.
This can be faster and less costly than court, however, parties are stuck with the decision to arbitrate even if they feel it is not working well for them and they wish to return to the traditional court process.
It can also be difficult or impossible to appeal the decision of an arbitrator.
Going to Court
For most couples, going to court is the last resort. Most clients hire lawyers to represent their interests at court, however, in Canada you are allowed to represent yourself.
The traditional court process involves several court appearances, in the form of conferences where a judge would encourage the parties to reach a settlement.
If conferences fail to help the parties reach a n based on judicial recommendations, lawyers can make Motions to ask judges to make orders, either temporary or final, for their clients.
Each lawyer presents legal arguments for their position and the judge is the final decision-maker. The parties have to abide by the court orders, even if they do not agree with them.
Eventually, a full trial may be necessary, which would involve witnesses, arguments and legal research.
It can take several years for a family law file to make its way through the various court procedures and is very costly, stressful and tends to increase animosity between the parties.
However, it is sometimes necessary to turn to the courts to decide what should happen if the parties are unable to reach any agreement.
Self-Represented Litigants (SRLs)
Going to court without a family lawyer is called being a “Self-Represented Litigant,” or SRL.
This is allowed in Canada’s court system, but the biggest drawback is that SRLs are held to the same standard as family lawyers.
In other words, you will be expected to know all the relevant laws and how previous Judges have interpreted those law, understand how to draft all the legal documents, observe all legal protocols, know how to address the Judge, and so on.
Neither the Judge nor the family lawyer representing your spouse are allowed to help an SRL not stumble, because that would be a conflict of interest for the party paying for the services of a family lawyer.
Judges try to make allowances for SLRs, but unfortunately, Canada’s courts are not designed for them.
What is Needed for Family Mediation to Succeed?
Generally, there are three factors that are necessary for family mediation to succeed for clients. They are: consideration, compassion, and compromise. If you want to leave your former life behind and want to move on with a new life, you are a candidate for family mediation. That’s it.
Call or email us now, to get started on your family mediation.