 |
| Tom Dart |
Historically, they would usually consult a family law lawyer for advice and recommendations on how to proceed. A lawyer is trained both in how to advocate for the client and in how to manage their way through the court system to advance the client’s case. The lawyer seeks to maximize the client’s entitlement not because they want to cause conflict but because they have an obligation to seek the very best outcome for their client. Often this approach turns adversarial very quickly, resulting in increased costs and emotional upset for the client, a result which, from the client’s perspective, is not usually intended or desired.
In 2019, after receiving numerous recommendations over a number of years from many sources about the best method of resolving family law disputes, the federal government amended the Divorce Act to require clients to use a family law dispute resolution process to settle any disputes they might have arising from their separation. The Divorce Act deals with parenting plans, child support and spousal support. Many provinces including Ontario quickly followed suit with amending legislation to require that parties, including unmarried partners, use the same processes for property settlements as well. Family law dispute resolution processes are defined as negotiation, mediation and collaborative law. None of these processes have to be used where “inappropriate.”
Sebastian Gorczowski: ISTOCKPHOTO.COM
So, mediation was a very familiar and available process even before the legislation was amended. There was a problem, however, with its promotion as there was no legislated requirement that the use of mediation be considered in every case, as it now must be.
There are many types of mediation, and each type has its benefits. Most lawyers look to the mediator to be “evaluative.” So, they often choose an experienced family law lawyer who can quickly size up a case and give the parties feedback as to the likely outcome of their case if they pursue their goals through court.
Many mediators prefer an “interest-based” approach in which the mediator encourages the parties to share their emotions in order to have them explore what lies beneath their position. Often in that type of mediation, the parties realize that they share many common goals, concerns and fears and are often able to find a “win-win” solution as a result.
Other types of mediation include “narrative mediation,” in which the parties are encouraged to change the narrative of their conflict story into a more collaborative story, one that they would like to experience instead of the conflict story.
Another descriptive term for some mediations is “transformative,” in which the parties are able to understand how their conflict evolved and become able to transform their relationship to a healing of sorts, from which they can truly move on in an entirely renewed sense.
Needless to say, not every individual is able to transform or create a new narrative, and much depends on the skill of the mediator and the ability of the parties involved in the mediation.
The first step in any mediation is to choose the appropriate mediator. There is no professional body that has the authority to regulate mediators. Some professionals, like lawyers and social workers, are regulated by their governing body. Therefore, they are regulated as lawyers and social workers while conducting mediations.
The mediation pioneers of the 1980s recognized that special training is required to be a good mediator. In order to accomplish this, organizations such as Family Mediation Canada and the Ontario Association for Family Mediation sprung up with an emphasis on creating standards that a person must fulfill to become a certified or accredited mediator.
In order to acquire certification or accreditation with these organizations, a mediator must become a member of the organization, take lengthy educational programs on how to conduct mediation, learn how to screen for intimate partner violence and power imbalances by taking another fairly intense and lengthy course, then undergo an internship of up to 100 hours under the supervision of a certified mediator before they can become a certified mediator themselves. Once they have attained that status, the mediator is recognized on the organization’s website as certified so that the public can find a person with the appropriate credentials to help them resolve their disputes.
Once the mediator is chosen, a good mediator should always meet with each of the parties to the mediation in a separate individual session that is confidential. The purpose of that meeting is to establish a rapport between the client and the mediator and, more importantly, to ensure, through appropriate questions, that the mediation will be safe and productive; that is, any power imbalances are capable of being managed and there is no history of intimate partner violence that might make the mediation dangerous for one of the parties.
After the individual sessions, the mediator then decides if mediation is appropriate. Usually, the mediator will decide it is not appropriate where there is a history of abuse or where one of the parties is not committed to settlement and is only using the process for delay or other purposes. The mediator is trained in ways to communicate the reason for not proceeding with mediation in the best manner in order to keep the abused partner safe.
This is part one of a two-part series.
Tom Dart, of Barriston Law LLP, is a family law lawyer, mediator and arbitrator. He is a member of the Ontario Bar Association and is past president of its family law section. Dart has been on numerous committees associated with reform of the family justice system. He has also written articles for presentation at seminars for the Canadian Bar Association and for other newsletters and periodicals in the area of family law.
The opinions expressed are those of the author and do not reflect the views of the author’s firm, its clients, Law360 Canada, LexisNexis Canada or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.
Interested in writing for us? To learn more about how you can add your voice to Law360 Canada, contact Analysis Editor Yvette Trancoso at Yvette.Trancoso-barrett@lexisnexis.ca or call 905-415-5811.