Five Common Mediation Myths Debunked

When I speak with prospective family law clients, most know that mediation involves a negotiation between two individuals with the assistance of a third party. But beyond that basic concept, their understanding is limited.

I have found there are several misconceptions about how the process works, who it is suitable for and what the desired outcome should be. So, let’s highlight the reality of family mediation by exploring five common myths.

Myth #1: Mediation is not appropriate for high-conflict divorces

Some clients — as well as lawyers — question whether mediation is appropriate in a high-conflict divorce. For example, maybe there is a history of controlling behaviour, a power imbalance or domestic violence. While it is true that some of these situations may require resolution through a court order, I would argue that mediation can be structured to provide a protected environment to resolve issues.

You can set up your mediation to ensure a safe process. If your mediation is in person, it can be structured so you arrive separately and are never in the same room together. Known as a shuttle mediation, you and your former spouse will be in separate rooms and the mediator then “shuttles” between locations to facilitate settlement discussions.

Parties communicate directly through the mediator and don’t need to be in each other’s presence. If your mediation is via teleconference, it can be facilitated so you and your former spouse will not appear on the same screen. 

Unlike going to court, mediation allows you to tailor the process to make it a safer environment and address any power imbalances.

Myth #2: I don’t need a lawyer if I opt for mediation

While you and your former spouse can attend mediation without lawyers, a mediator will often instruct the parties to obtain independent legal advice before entering into a separation agreement.

It is important to note that a mediator does not take the place of a lawyer. A mediator is a neutral third party who will help you and your former spouse communicate with each other to reach an agreement. They do not take sides, make decisions on your behalf or provide you with legal advice. 

Because the process is so flexible, you can decide your lawyer’s level of participation. For example, you may want your lawyer sitting at the table with you throughout the meditation, or you can meet with them to review the separation agreement before signing. 

Myth #3: All mediators are created equal

In Ontario, mediators who provide court-connected services must meet minimum qualifications, including training, certification/accreditation and work experience. That means a mediator could be a lawyer with a background in family law or a social worker/psychologist with mediation experience. 

In my previous blog, I noted that depending on the issues you are looking to resolve, one type of mediator may be more suitable for your case than another. For example, a lawyer-mediator can explain how the law applies to your situation and provide insight into what would happen if your matter goes to court. That said, mediators with a background in social work or psychology serve an essential role, especially if there are mental health or parenting issues to resolve. 

When choosing a mediator, it is crucial to consider a mediator’s experience with family law issues and their training related to your issues. Another benefit of involving an experienced family law lawyer in your matter is that they can help advise you about selecting an appropriate mediator.

Myth #4: Mediation is not suitable for complex financial issues

Sometimes there is a misconception that mediation is inappropriate for dividing complex assets. Again, because the process is so flexible and adaptable, you can tailor it to match the issues. Couples can choose a skilled mediator with experience dealing with complex financial issues and bring in outside experts such as tax professionals, financial advisors, business valuators, and others. In short, anything that can be accomplished in court can be part of your mediation process.

Another advantage of mediation is that it can be a confidential process, which is a big plus when dealing with a high-net-worth divorce. A closed mediation is private and confidential, barring a few exceptions. Lawyers and parties involved can’t share the discussions from the mediation session, which means there is a greater chance of privacy when you choose family mediation.

Myth #5: Litigation and mediation are mutually exclusive

Last year, amendments to the Divorce Act signaled a distinct shift away from litigation to make the family justice system more accessible and efficient. Family lawyers must encourage clients to solve issues through out-of-court methods unless it would be inappropriate.

That said, you are not locked into your initial choice to litigate or mediate. Even if you and your former spouse agree on one issue to negotiate and litigate the rest, you will reduce the time and expense of your trial. In addition, you can choose to start mediation at any point in the litigation process.

Mediation can be an excellent place to start, part of a broader approach, or it can be the entire process. You can determine the best path forward by speaking with an experienced family lawyer to discuss your options.

If you would like to schedule a consultation to explore if family mediation is right for you, send me a message. I would be happy to help you.

Darlene Rites

Darlene Rites