Family Mediation Process
The Family Mediation process begins when you have agreed to participate and have chosen a mediator. This is formally decided by signing the Agreement to Mediate provided by the mediator. It will further detail the standards, goals and process of Family Mediation for you.
Your first contact with your family mediator gives you the chance to discuss the mediation process, the expected outcome and your personal reasons for participating. This is the first step towards cooperating under the guidance of a mediator. It is recommended that all parties seek legal advice prior to entering mediation as well as consulting financial and mental health professionals.
Any information that will influence the mediation has to be disclosed at the onset. In order to properly help you negotiate a settlement, the mediator must be thoroughly informed of the circumstances. At this point the family mediator initiates the screening process.
What is the screening process?
Family mediators will assess for domestic violence and power imbalances in the relationship. Using various methods the family mediator will attempt to identify whether family mediation is the appropriate process and if there is any need to implement strategies to ensure safety of all family members. Screening continues throughout the mediation.
The mediator outline the rules, goals and process of mediation, and remind participants of the importance of communication and cooperation in reaching a settlement.
The mediation process begins with individual sessions so each party can freely express their perspective in the absence of the other party.
At this point the mediation process will proceed to joint sessions where the participants review and confirm the ground rules and goals of the mediation. The parties will determine whether or not the mediation will be open or closed and will sign a contract to mediate.
The contract to mediate includes all issues that require mediation. It may include any of the following items:
- All aspects of a divorce or separation including child custody and access, child support, spousal support, and the division and equalization of property.
- Terms of a prenuptial agreement, marriage contract or cohabitation agreement dealing with financial matters while living together, on death and on separation.
- Points of dispute between parents and children.
- Family business agreements and arrangements including valuation, establishment, operation, reorganization, succession, dissolution or sale.
The mediator will facilitate a series of discussions leading to an agreement on issues outlined in the contract. Most discussions are conducted with the parties in the same room. The mediator may employ the caucus method to speak to the parties individually during the mediation.
In some instances the parties will be in separate locations throughout the process and the shuttle method is applied which involves participants staying in their separate locations while the mediator navigates back and forth between parties.
Each step may be repeated as many times as needed. Mediation sessions may last between one and two hours, depending on the mediator and the progress. It usually takes multiple sessions to reach a final agreement.
If an agreement is reached, it is documented by the Family Mediator in the Memorandum of Understanding which is the Mediator’s documentation on the points of agreement reached between the parties.
Each individual should take the Memorandum of Understanding document to their own lawyer for independent legal advice. At this point the process of drafting a Separation Agreement based on the Memo of Understanding begins. Your lawyer will ensure that there has been complete financial disclosure and that the formalities of execution are in compliance with the Family Law Act.
What is Open & Closed Mediation?
Participants can choose to conduct Family Mediation in an Open or Closed format.
The participants preserve the confidentiality of their mediation.
Mediation is a process that guides two or more parties in resolving disputes while working towards developing an agreement on how to resolve these issues. Most clients want their negotiations to be kept confidential, meaning that, in a legal sense, whatever is said and whatever offers are made cannot later be used against them in court or arbitration proceedings if negotiations fail. Almost all family mediation in Ontario is carried out in this manner, and is called Closed Mediation.
Nothing said or done during the process can be brought to the court, nor can the mediator be summonsed to court to talk about the process or what happened. Documents that are provided (other than settlement offers) which are relevant to the legal process are not confidential. Also, the fact that the mediation process is closed does not mean that the clients are not permitted to tell their lawyers, counselors, friends etc what happened. It is only the process (court or arbitration) that cannot be talked about.
The participants waive the confidentiality of their mediation.
Very occasionally, mediators are asked to conduct an Open Mediation. The distinction between open and closed mediation relates to disclosure to the legal process during mediation. There are no clear guidelines as to what can or cannot be disclosed about the mediation process if open mediation is chosen. Because of this lack of clarity, many mediators will not conduct open mediations.
In some places, open mediation means no more than the mediator reporting to the court whether there was a settlement or not, but no more (e.g. in many of the Family Court mediation services). In other places mediators may report much more about the process and its results. It is absolutely essential for anyone choosing open mediation services to have a contract specifying what can and what cannot be disclosed about the legal process during mediation. Always clarify at the very first contact with the mediator whether you are looking for open or closed mediation.
What is Arbitration or Med-Arb?
In mediation, you are the decision makers. When you choose to do Arbitration, the decision maker is the Arbitrator chosen. In effect it is hiring a private Judge. The benefit can be that you have chosen that person but you must also pay their fees.
Mediation/Arbitration, or the hybrid approach of "mediation/arbitration" allows for mediation first but when you sign the Agreement you are pre-determining that if mediation does not work, that person will then become a decision maker.
The Ontario Association for Family Mediation does not govern the mediation/arbitration hybrid approach so participants should use caution and obtain legal advice before using this process.
What is Parenting Coordination?
Parenting Coordinators are retained after a court Order or Separation Agreement that deals with parenting is being followed but the participants are having difficulty with implementation of those terms. Parenting Coordinators are not governed by the Ontario Association for Family Mediation. The approach is the facilitation of a discussion about the difficulties followed by a decision being made by the Coordinator if necessary. It is similar, therefore, to the hybrid approach of mediation/arbitration.