Will We Need Lawyers if We Mediate Our Separation and Divorce in Ontario?

This is one of these most frequent questions we are asked by participants entering into the mediation process.

The answer is yes, you will need to have your own independent lawyers to assist you as part of the mediation process.

Let’s dive into why.

Understanding the Hesitation

The concept of hiring individual lawyers may seem counterintiutive for couples who are seeking to resolve the issues arising from their separation amicably through mediation. And we understand why.

There may be concerns about escalating conflict, increasing costs, or prolonging the resolution process. Some individuals may perceive hiring a lawyer as an indication of distrust or a lack of commitment to the mediation process. After all, the purpose of mediation is to resolve disputes amicably, without the need for adversarial legal battles, right?

But it is important that you understand the distinction between a mediator and a lawyer, and the role that independent lawyers play in the mediation process.

Your Mediator is Not Your Lawyer

Mediators cannot provide legal advice. This is true even if the mediator is an experienced family law lawyer.

Many separating couples share the common goal of amicably arriving at a resolution of the issues arising from their separation. However, when spouses separate there exist divergent legal rights and obligations that often conflict. The Law Society of Ontario has strict rules prohibiting a single lawyer from acting for two parties with different legal rights and obligations. Furthermore, a mediator’s duty is to remain neutral and impartial. Providing legal advice to both spouses could introduce the potential for a conflict of interest which could undermine a mediator’s ability to uphold neutrality and compromise the mediation process.

Therefore, a mediator cannot provide legal advice and it is important that each party consult with their own independent lawyer to receive legal advice regarding their individual rights, interests and obligations as part of the mediation process.

Lawyer-Assisted Mediation vs. Mediation without Lawyers

Before we delve into the role of lawyers in the mediation process, it is important to understand the difference between the two primary types of family mediation in Ontario: lawyer-assisted mediation and mediation without lawyers.

Lawyer-Assisted Mediation: In lawyer-assisted mediation, both parties have their own lawyers present during the mediation sessions. The lawyers provide legal advice and directly engage in negotiations. This type of mediation can be beneficial for more complex cases or when significant legal issues are involved. It offers the advantage of immediate legal counsel, which can help clarify legal rights and obligations on the spot, potentially expediting the process. However, in lawyer-assisted family mediation, the lawyers often take a central role in negotiating, which can shift the focus from an interest-based discussion to a more adversarial, law-centric approach. This can sometimes lead to solutions that prioritize legal outcomes over the unique needs and interests of the family.

Mediation Without Lawyers: Mediation without lawyers involves the couple working directly with a mediator to reach an agreement. The mediator is a neutral facilitator who helps the parties communicate, negotiate, and resolve disputes. In this type of mediation, the participants consult generally consult with their own independent lawyers outside of the mediation process to receive legal advice. This type of mediation allows the couple to have more direct control over the discussions and the outcomes, and to focus on issues that extend beyond the law.

Whether lawyers participate directly in the mediation process is something that is decided in consultation with the mediator, the participants and their lawyers and determined based on each family’s unique circumstances.

You can learn more about the Family Mediation Process Without Lawyers in our blog How Does Mediation Work for Separation and Divorce In Ontario?

The Role of Lawyers in the Family Mediation Process

Regardless of whether lawyers participate directly by attending mediation sessions or assist their clients outside of the process, independent lawyers serve the following important roles in the mediation process:

1) Providing Legal Information and Advice: Independent lawyers provide mediation participants with information and advice regarding their individual legal rights, obligations and entitlements. This helps mediation participants to understand the law, assess the reasonableness of the positions and options presented in mediation, and to make informed decisions as part of the mediation process.

2) Risk Assessment: Lawyers are experts at assessing potential risks and pitfalls that mediation participants may not have considered. Receiving advice from a lawyer helps participants to understand potential risks and make decisions that align with their long-term interests, and not only their immediate concerns at the time of separation when emotions are often running high.

3) Providing Support: Beyond simply providing legal advice and information, independent lawyers can also be a source of additional support for their clients, helping them to navigate the complexities of separation with understanding and empathy.

4) Preparing a Legally Binding Agreement: At the conclusion of the mediation process, the mediator will provide participants with a mediation report or Memorandum of Understanding summarizing the terms of any agreement reached in mediation. However, it is important to understand that this document is not a legally binding agreement. It is the role of independent lawyers to incorporate any agreement reached in mediation into a legally binding contract, which is usually in the form of a separation agreement in Ontario.

5) Providing Certificates of Independent Legal Advice: In Ontario, family law lawyers commonly sign certificates of independent legal advice in connection with separation agreements. These certificates, signed by the lawyers, confirm that the parties to a separation agreement have reviewed the agreement with their lawyers, understand the terms of the agreement, and have advised their lawyer they are signing the agreement voluntarily and without duress. Certificates of independent legal advice can play a crucial role in the enforceability of separation agreements. Without a signed certificate of independent legal Advice, there is potential increased risk that a separation agreement could be set aside by the court in the future. Due to this increased risk, sometimes lenders will refuse mortgages or other loans to separated spouses who do not have a separation agreement with attached signed certificates of independent legal advice, highlighting the importance of having a lawyer assist you with finalizing your binding agreement.

Choosing the Right Lawyers

Contrary to popular misconceptions, involving independent lawyers should not undermine the collaborative spirit of mediation. On the contrary, the involvement of lawyers often strengthens the integrity of the process by ensuring that participants enter into agreements with clarity, confidence, and a full understanding of their rights and responsibilities.

However, it is important to choose the right lawyers. Under the Divorce Act, in Canada family lawyers have a positive duty to encourage separating spouses to use a family dispute resolution process (such as mediation) prior to applying to court unless it would be inappropriate to do so. Nevertheless, there remain differences in the skill-sets and approaches of different lawyers.

Some lawyers are skilled courtroom advocates who are trained and who have developed expertise for litigation. Other lawyers are themselves mediators or collaborative professionals with specialized training on interest-based negotiation and on how to finalize agreements in an amicable setting.

If you are entering into a family mediation process with the view of reaching an amicable resolution, it is important to choose a lawyer who supports your goals, whose advice you trust and with whom you feel comfortable to communicate openly and honestly.

If you need help finding a lawyer, your mediator can assist by providing a list of lawyers in your area to reach out to.

Conclusion

In conclusion, while mediation offers a constructive and non-confrontational environment for resolving family disputes, the role of independent legal advice remains integral to the integrity and effectiveness of the process. By embracing the support and guidance of independent lawyers, participants empower themselves to make informed decisions, protect their rights, and ultimately achieve fair and sustainable resolutions that serve the best interests of all involved.

At Teal Family Mediation, we recognize the importance of independent legal advice and encourage all participants to seek the guidance of experienced lawyers throughout the mediation process.

Our mediation services are designed to support separating spouses seeking to mediate the terms of a separation agreement without lawyers, but we also provide lawyer assisted mediation services as needed.

Our mediators are also trained collaborative professionals which, allows us to offer collaborative mediation services, a unique form of lawyer-assisted mediation involving the participation of collaborative lawyers which you can learn more about in our upcoming blog post on Understanding Mediation, Collaborative Law and Collaborative Mediation.

We can work it out. Together.

Teal Family Mediation is team of professional divorce mediators located in Hamilton, Ontario offer mediation services for separating married and common-law couples and co-parents.We offer an alternative to high-cost, inefficient and adversarial court proceedings with an affordable, modern and compassionate approach towards resolution.

We offer services in-person at our offices located in the Ancaster, Meadowlands and virtually from anywhere in Ontario.

 

You can download our free Mediation Guide to learn more about our services or connect with us today to book a complimentary Discovery Call where we can answer any questions you may have.

If you are interested in learning more about how we can help you, let’s connect.

Let’s Connect:

Disclaimer: none of the information in this blog post should be construed as providing legal advice. Should you have questions about your legal rights and obligations, or about your legal process options when you separate, you should consult with an independent lawyer to receive legal advice.

What Are the Benefits of Using Mediation When You Separate and Divorce in Ontario?

Separating or divorcing can be one of the most challenging experiences in life. However, choosing mediation over traditional litigation can make the process smoother and less stressful. At Teal Family Mediation, we understand the unique benefits of mediation and are here to guide you through this journey. In this blog post, we'll explore the numerous advantages of mediation for separation and divorce, highlighting why it may be the best choice for you and your family.

Understanding Mediation

Mediation is a voluntary process where a neutral third party, known as a mediator, helps separating or divorcing couples reach mutually acceptable agreements. Unlike court proceedings, mediation is confidential and allows couples to maintain control over the decisions affecting their lives. This process generally covers all aspects of separation and divorce to be included in a separation agreement, including a parenting plan, child support, spousal support and property division.

To learn more about the family mediation process in Ontario, read our blog: How Does Mediation Work for Separation and Divorce in Ontario?

Key Benefits of Family Mediation  in Ontario:

1.     Fulfill Your Legal Duties: Before applying to court, separating spouses have a legal duty under the Divorce Act to try to resolve their issues using a family dispute resolution process, such as mediation, to the extent that it is appropriate to do so. Parents also have a legal duty to protect their children from the harm of parental conflict under both federal and provincial laws. Family mediation can help you meet these legal duties. You can find more information about your legal duties and these recent changes to the Divorce Act on the Government of Canada website.

2.     Protect Your Children: Family mediation is child focused. The guidance and resources provided are aimed at promoting the well-being of children, reducing conflict and promoting your ability to successfully parent together during this time of transition and into the future. Family mediation also provides you and your co-parent the opportunity to create a custom parenting plan – which you design together - tailored to meet your unique family circumstances and your children’s individual needs.

3.     Focus on Your Future, Not Your Past: Mediation is a future looking process that is focused on reaching mutually agreeable solutions, without placing blame or finding fault. This is in contrast to more adversarial processes like court that often focus on past history and blame, which only amplifies conflict and keeps you stuck in the negative energy of the past.

4.     Have Your Voice Heard: In the mediation process you will be communicating directly with one another - with your mediator’s guidance - allowing both of your voices to be heard. This is in contrast to legal negotiations or court, where your voices are filtered through lawyers or reduced to written letters and court documents.

5.     Save Money: One of the most significant benefits of mediation is its cost-effectiveness. Traditional divorce litigation can be prohibitively expensive due to the legal fees and court costs involved in extended legal battles. In contrast, mediation generally involves much lower costs. This is usually true, whether you chose mediation without lawyers or lawyer-assisted mediation. By choosing mediation, couples in Ontario can save a substantial amount of money, making it a financially sensible option.

6.     Save Time: Court proceedings can drag on for months or even years, prolonging the emotional and financial strain on both parties. Mediation, however, typically resolves disputes much more quickly. The flexibility of scheduling mediation sessions means that couples can work through their issues at their own pace, often leading to faster resolutions. This efficiency allows both parties to move forward with their lives sooner.

7.     Maintain Control Over the Outcome: Family mediation gives you the ability to maintain control over your negotiations so you can achieve the final outcomes you want for your family. This is in contrast to the court process where a judge unfamiliar with you or your children make decisions for your family and is bound by the “one-size fits all” legal model.

8.     Reduce Stress: Family mediation can minimize the emotional stress for those involved in the separation and divorce process. With the assistance of a trained, kind and compassionate mediator, a safe space can be created in the mediation process to give participants equal voice in communicating their individual and collective goals and interests, without engaging in stressful and harmful combat.

9.     Minimize Future Conflicts: The custom-tailored agreements reached through direct discussion in the family mediation process are generally lasting resolutions, in comparison to circumstances where a decision is imposed upon people -which they are often unhappy with. However, should future conflicts arise which you cannot resolve directly, you can agree to return to the mediation process for help in working together to find a solution.

10.  Protect Your Family’s Privacy: Unlike the Court process which is public, family mediation is a private and confidential process. All mediation participants are asked to sign a 'Mediation Agreement' to protect privacy and confidentiality.

11.  Improved Communication and Cooperation: The mediation process encourages open and respectful communication. This can be particularly beneficial for couples who will continue to co-parent their children. Mediation fosters a cooperative relationship, helping parents to establish a workable parenting plan and improve their communication skills. This improved dynamic can significantly benefit the children involved, as it promotes a more harmonious post-separation environment.

Why Chose Teal Family Mediation?

At Teal Family Mediation, our lawyer-trained mediators bring a wealth of legal knowledge and compassionate guidance to the mediation process. We specialize in helping couples navigate the complexities of separation and divorce with a focus on achieving fair and lasting agreements.

We are forward thinking and conscious family law professionals. We are among the first mediators in Ontario to team up with Our Family In Two Homes to offer their workbooks as part of our mediation process. We are also among the first group of Ontario family law professionals to be trained in the ConsciousContracts® Process. Our technologies improve the level of convenience and service we provide with virtual mediations, automated processes and online forms and billing.

Depending on your location and comfort level, our team offers both our team offers both in person virtual mediation services across Ontario for your convenience.

We also offer complimentary Discovery Calls to help you decide if our mediation services are the right fit for your family. These free consultations provide an opportunity for you to meet with a member of our team to understand the mediation process, ask questions, and determine if mediation is the right choice for your situation.

To assist you further, we have created a free Mediation Process Guide. This guide provides valuable insights into what you can expect during mediation and how to prepare for it.

We can work it out. Together.

Teal Family Mediation is team of professional family law and divorce mediators located in Hamilton, Ontario offering mediation services for separating married and common-law couples and co-parents. We offer an alternative to high-cost, inefficient and adversarial court proceedings with an affordable, modern and compassionate approach towards resolution.

We offer services in-person at our offices located in the Ancaster, Meadowlands and virtually from anywhere in Ontario.

 

You can download our free Mediation Guide to learn more about our services or connect with us today to book a complimentary Discovery Call where we can answer any questions you may have.

If you are interested in learning more about how we can help you, let’s connect.

Let’s Connect:

Disclaimer: none of the information in this blog post should be construed as providing legal advice. Should you have questions about your legal rights and obligations, or about your legal process options when you separate, you should consult with an independent lawyer to receive legal advice.

How Does Mediation Work for Separation and Divorce in Ontario?

Navigating a separation or divorce can be a challenging and emotional process. For many couples in Ontario, mediation offers a less adversarial and more collaborative way to resolve disputes and reach agreements. If you’re separating and considering mediation in Ontario, here's a comprehensive guide on how the process works and how it can benefit you and your family.

What is Family Mediation?

Mediation is a voluntary process where a neutral third-party, known as a mediator, helps separating or divorcing couples reach mutually acceptable agreements. Unlike court proceedings, mediation is confidential and allows couples to maintain control over the decisions affecting their lives. A mediator does not act like a judge or make decisions for the parties, but rather facilitates discussions to allow separating spouses to reach their own agreement. This approach can significantly reduce stress and foster a cooperative environment, which is particularly beneficial when children are involved.

Types of Family Mediation in Ontario

There are two primary types of family mediation in Ontario: lawyer-assisted mediation and mediation without lawyers. Understanding the difference between these types can help you choose the best approach for your situation.

Lawyer Assisted Mediation

In lawyer-assisted mediation, both parties have their own lawyers present during the mediation sessions. The lawyers provide legal advice, help with negotiations, and ensure that any agreements comply with legal standards. This type of mediation can be beneficial for more complex cases or when significant legal issues are involved. It offers the advantage of immediate legal counsel, which can help clarify legal rights and obligations on the spot during the mediation session.

Mediation Without Lawyers

Mediation without lawyers involves the couple working directly with a mediator to reach an agreement. The mediator is a neutral facilitator who helps the parties communicate, negotiate, and resolve disputes. While the mediator can provide general legal information, they do not give legal advice. This type of mediation is typically less formal and can be less expensive than lawyer-assisted mediation. It also allows the couple to have more direct control over the discussions and the outcomes.

To learn more about mediation with and without lawyers, you can read our blog post: Will We Need Lawyers if We Mediate Our Separation and Divorce in Ontario?

The process described in this below pertains to mediation without lawyers, focusing on a collaborative and cost-effective approach to resolving separation and divorce issues.

The Family Mediation Process without Lawyers in Ontario

While different mediators may have their own process, generally mediation without lawyers follows the following steps:

1. Initial Consultation: The first step in the mediation process is an initial consultation. This meeting allows you to understand the mediation process, ask questions, and determine if mediation is the right choice for your situation. During this session, the mediator will explain their role and outline the steps involved in mediation. This is also an opportunity for you to gauge whether you feel comfortable with the mediator, as a good rapport can enhance the effectiveness of the process.

2. Agreement to Mediate: If you decide to proceed with mediation, you will sign an agreement to mediate. This document outlines the rules and expectations of the mediation process, including confidentiality, the role of the mediator, and how mediation fees will be paid. It ensures that both parties understand and agree to the terms of the mediation process.

3. Information Gathering: During this phase, both parties gather and exchange all relevant information. This usually includes financial documents, details about property, and any other information pertinent to the issues being mediated. Transparency is crucial in this step, as it lays the groundwork for fair and informed negotiations. Exchanging financial information is also an important step in ensuring that any separation agreement arrived at through the mediation process is legally binding and enforceable in Ontario. The mediator may provide checklists or worksheets to help organize the necessary documents and ensure that nothing is overlooked.

4. Mediation Sessions: Mediation sessions may be conducted using video conferencing technology (like Zoom or MS Teams) or in person. If mediation is conducted online, it is important that mediation participants are in a private space where they will not be interrupted. When conducted in person, mediation sessions are typically held in a neutral setting, such as the mediator’s office. The number of sessions required can vary based on the complexity of the issues and the willingness of both parties to negotiate. Each session focuses on specific topics such as property division, spousal support, child support, and parenting plans. The mediator guides the conversation, helping to clarify issues and explore potential solutions

5. Negotiation and Agreement: The mediator facilitates discussions and negotiations, helping both parties communicate effectively and work towards a mutually satisfactory agreement. For couples who are recently separated, mediation aims to help them reach a resolution that covers all aspects of their separation or divorce to be incorporated in a comprehensive separation agreement. For those with an existing separation agreement or court order, mediation can be tailored to resolve any new issues in dispute. The mediator ensures that both parties have the opportunity to express their views and concerns, fostering a balanced and respectful dialogue.

6. Drafting the Agreement: Once an agreement is reached, the mediator will prepare a mediation report outlining the terms of settlement agreed upon between the parties during the mediation process. This report is then shared with the parties’ lawyers, who can assist with incorporating the terms agreed upon in the mediation process into a formal separation agreement.  It is advisable for each party to have their own lawyer review the agreement to ensure it meets their needs and complies with Ontario law. This legal review helps to protect your interests and ensures that the agreement is enforceable.

7. Finalization: After both parties and their respective lawyers have reviewed and approved the agreement, it is signed by both parties to become a legally binding and enforceable separation agreement in Ontario. This final step formalizes the terms of your agreement and provides a clear path forward, reducing the potential for future conflicts.

To learn more about the steps involved in the mediation process, you can also download a free copy of the Teal Family Mediation Guide.

Benefits of Family Mediation in Ontario

Here are some of the benefits of using the family mediation process to resolve the issues arising from your separation and divorce:

1. Cost-Effective: Mediation is generally less expensive than going to court. By choosing mediation, couples in Ontario can save on legal fees and reduce the overall cost of their separation or divorce. The cost savings can be significant, as mediation tends to be a quicker process than litigation, which often involves multiple court appearances and extended legal battles.

2. Time-Saving: Court proceedings can be lengthy and drawn out. Mediation typically resolves disputes more quickly, allowing both parties to move forward with their lives sooner. The expedited process means that couples can avoid the prolonged stress and uncertainty that often accompany court cases.

3. Confidential: Unlike court cases, which are public records, mediation is a private process. This confidentiality can be crucial for those who prefer to keep their personal matters out of the public eye. Privacy in mediation encourages open and honest communication, as parties can negotiate freely without concern that information they share or compromises they propose will be used against them.

4. Control and Flexibility: Mediation allows couples to have more control over the outcome. They can work together to create solutions that best suit their unique situation, rather than having a judge make decisions for them.This collaborative approach often leads to more satisfactory and personalized agreements.

5. Improved Communication: The mediation process encourages open and respectful communication. This can be particularly beneficial for couples who will continue to co-parent their children, as it fosters a cooperative relationship. Improved communication can lead to better long-term interactions, which is essential for the well-being of any children involved.

To learn more about the benefits of family mediation, check out our blog on What are the Benefits of Using Mediation When You Separate or Divorce in Ontario?

Finding a Mediator in Hamilton, Ontario

If you live in Ontario and are considering mediation for your separation or divorce, it’s important to choose a qualified mediator with experience in family law. You may want to look for mediators who are also experienced family lawyers, as they help you identify legal issues and provide valuable legal information while guiding you through the mediation process.

At Teal Family Mediation, we specialize in helping couples navigate the complexities of separation and divorce through mediation. Our team of experienced lawyer-mediators is dedicated to providing compassionate and effective mediation services tailored to your needs.

We offer complimentary Discovery Calls to help you decide if our approach and our team are right for you.

We can work it out. Together.

Teal Family Mediation is team of professional family law and divorce mediators located in Hamilton, Ontario offering mediation services for separating married and common-law couples and co-parents. We provide an alternative to high-cost, inefficient and adversarial court proceedings with an affordable, modern and compassionate approach towards resolution.

We offer services in-person at our offices located in the Ancaster, Meadowlands and virtually from anywhere in Ontario.

 

If you are interested in learning more about how we can help you, let’s connect.

Disclaimer: This blog is for informational and educational purposes only, and none of the information in this blog post should be construed as legal advice. Should you have questions about your legal rights and obligations, or about your legal process options when you separate, you should consult with an independent lawyer to receive legal advice.