Couples who decide to work through the issues of their separation in mediation rather than in court have options for the professional they choose as their family mediator.
First things first: Mediation is a voluntary, out-of-court process where a separating couple works with a family mediator who helps them negotiate a mutually acceptable agreement.
In Ontario, we have a wealth of family mediators with different styles and backgrounds: some are lawyers, but there are also social workers, psychologists and other professionals. Depending on the issues you are looking to resolve, one type of mediator may be more suitable for your case than another.
For example, if the only bone of contention between you and your former spouse is around how your children will split their time between homes, it might make sense to select a mediator who is also a social worker with extensive experience in parenting issues.
However, if your divorce involves complex financial issues, you would be wise to choose someone who has an extensive background in family law.
Cases involving spouses who don’t agree on how to split their property and money are some of the most complex and time-consuming to resolve. Working with a mediator who is skilled in this area will help ensure that any agreement you reach in mediation is both fair and legally binding.
In this column, I will highlight five main reasons couples should consider working with an accredited family mediator who is also a lawyer.
1. Knowledge of Judicial Process
There are many benefits to working with a lawyer as your mediator, including their knowledge and expertise of the law and the court processes. As a result, they can provide you with helpful information about what would happen if your matter goes to court.
When you’re negotiating, it’s also important to know the best alternative to a negotiated settlement. A mediator who is a lawyer can provide that information, which will help you make informed decisions about your case.
It’s important to select a mediator who is the best fit for your specific situation. As a general guideline, the mediator should have experience with family law issues and training related to the issues in dispute. If the mediator doesn’t have the required experience, the process could take longer to resolve and cost more.
3. Faster Resolution in Complex Cases
Once a couple decides to move forward separately, they usually want to resolve their outstanding issues as quickly and efficiently as possible. When the issues in contention are more complex — let’s say one spouse wants to keep the marital home but the other wants to sell it and split the proceeds — it’s imperative to understand both what the law dictates and how similar types of cases have played out before the courts. A family lawyer can be extremely helpful in this situation, providing you with timely access to the legal information you need to make educated choices.
4. Training and Expertise
Family law is extremely complex and constantly evolving. Only a mediator who is a family lawyer can explain how the law applies to your situation. A family mediator who isn’t up to date with current legislation or case law may inadvertently include terms in the agreement that are not legally binding.
Something else to ask a prospective mediator is how much of their practice is dedicated to family mediation. Ideally, you want a mediator who is entirely focused on family matters.
5. Understanding of Power Imbalances
Mediators are required to screen the parties for power imbalances or domestic violence issues that might enable one spouse to coerce the other. As professionals who work exclusively with couples, family lawyers know how to recognize some of the more subtle behaviours that might signal an abusive situation.
While mediation may not be appropriate when family violence is a factor, I have successfully mediated many high-conflict cases as well as ones involving power imbalances between the parties. The process can work effectively and safely if the mediator designs a mediation that addresses the power dynamics.
If you have questions about your situation and are looking for information either before or during the mediation process, please contact me. As a family lawyer who is also an accredited mediator, I will ensure you have a clear understanding of your rights, obligations and the legal ramifications you might face during the course of your matter.