Is Family Mediation Mandatory When Couples Separate or Divorce in Ontario?

When facing separation or divorce, many couples in Ontario consider mediation as an alternative to traditional litigation. However, a common question that arises is whether mediation is mandatory in Ontario. In this blog post, we will explore this question, the benefits of mediation, and how it fits into the family law process.

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. This process can cover various issues such as property division, spousal support, child support, and parenting arrangements. In mediation, unlike in court, the mediator does not act as a judge to make decisions for the couple about resolving their issues. Instead, the mediator's role is to facilitate dialogue and help the parties reach a mutually agreed-upon resolution themselves.

Is Family Mediation Mandatory in Ontario?

Attending mediation is not mandatory for couples who are separating or divorcing in Ontario.

However, mediation is strongly encouraged under federal and provincial laws and recommended by family court judges as a means to resolve the issues arising from separation including parenting, child and spousal support, and the division of assets.

What does the Canadian Divorce Act say about family mediation?

Section 7.3 of the Divorce Act, which applies to married spouses in Canada provides:

To the extent that is is appropriate to do so, the parties to a proceeding shall try to resolve the matters that may be subject of an order under this Act through a family dispute resolution process.

Mediation is a family dispute resolution process as defined by the Divorce Act.

This means that under the law in Canada, married spouses are required to try mediation or another out of court family dispute resolution process such as negotiation or collaborative law before applying to court, unless it would be inappropriate to do so.

Section 7.7(2)(a) of the Divorce Act further provides, “It is also the duty of every legal adviser who undertakes to act on a person’s behalf in any proceeding under this Act, to encourage the person to attempt to resolve the matters that may be the subject of an order under this Act through a family dispute resolution process, unless the circumstances of the case are of such a nature that it would clearly not be appropriate to do so.”

This means that lawyers also have a positive duty to encourage their clients to attempt to resolve matters through mediation or another family dispute resolution process, unless it would be clearly inappropriate in the circumstances of the case to do so.

There is no definition in the Divorce Act as to when it would be inappropriate to try to resolve matters through mediation or another family dispute resolution process, but generally applications to family court should made only when necessary, such as situations where there is an emergency or safety concerns requiring a court order, or when out of court dispute resolution options like mediation have been exhausted.

What do the provincial Ontario family laws say about mediation?

The Ontario Family Law Act , which applies to married and common law spouses and governs property and support issues, permits the Court to make an Order appointing a mediator.

The Children’s Law Reform Act, which governs parenting issues between unmarried spouses, also provides that the court may appoint a mediator at the request of the parties.

The Family Law Rules in Ontario further permit a judge to make an order combining otherwise mandatory and case and settlement conferences into a single court appearance where the parties have attended mediation and provided certain conditions have been met. Attempting mediation before applying to court can therefore potentially shorten the length of the court process, should court ultimately become necessary to resolve a dispute.

These laws are intended to promote the use of mediation. Family court judges commonly rely upon them to encourage parties to attempt to resolve issues through the mediation rather than court wherever possible.

Therefore, while mediation is not mandatory for separating families in Ontario, the current laws and decisions of family court judges strongly signal that other than in certain limited circumstances, mediation or another family dispute resolution process should be attempted prior to applying to court.

Even in contentious circumstances, there are many benefits to trying mediation before applying to family court. These benefits include saving time and money, reducing stress, maintaining autonomy over the outcome of your situation, and minimizing future conflicts.

You can learn more about the mediation process and its benefits in our posts on How Does Mediation Work for Separation and Divorce in Ontario and What Are the Benefits of Using Mediation When You Separate and Divorce in Ontario?

If you’re interested in learning more about mediation and collaborative law, and the distinction between these two family dispute resolution processes, you can read more about that topic in our post on Understanding Mediation, Collaborative Law, and Collaborative Mediation.

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.

We can work it out. Together.

Teal Family Mediation is team of professional 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.

 

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Understanding Mediation, Collaborative Law, and Collaborative Mediation

In the realm of family law, navigating disputes with empathy, collaboration, and efficiency is paramount. As families seek alternatives to traditional litigation, methods like mediation and collaborative law have emerged as effective pathways to resolution. However, there's also another innovative approach that combines the strengths of both: collaborative mediation.

Let's explore the distinctions between mediation, collaborative law, and the unique benefits of collaborative mediation.

Mediation

Mediation is a process where a neutral third party facilitator assists participants in identifying issues and communicating to arrive at mutually acceptable agreement.

Key Characteristics:

1. Neutral Mediator: A trained mediator acts as a neutral facilitator, guiding discussions without taking sides or making decisions for the parties involved.

2. Voluntary Participation: Participation in mediation is voluntary, and all participants must agree to engage in the process willingly.

3. Mediation Agreement: At the outset of the mediation process, participants sign a mediation agreement confirming their commitment to the voluntary mediation process, defining the confidentiality parameters of the mediation process and setting out mediation fees.

4. Confidentiality: Discussions held during mediation are confidential, promoting open and honest communication among the participants.

5. Control and Empowerment: Participants retain control over the outcome and have the opportunity to actively participate in crafting solutions that meet their unique needs and interests.

6. Flexible Design: the mediation process can be conducted by a single professional mediator and where circumstances warrant, it can also be adapted to include participation from other qualified professionals, such as financial and parenting experts.

7. Role of Lawyers: It is always recommended that mediation participants retain independent lawyers to provide them with legal advice throughout the process. However, the role of lawyers in the mediation process varies. Mediation participants may attend mediation without their lawyers present and consult with their lawyers separately, outside of the mediation process; or, where the circumstances warrant, lawyers may also participate directly in the mediation process. To learn more about the role of lawyers in the mediation process, please visit our blog: Will We Need Lawyers if We Mediate Our Separation and Divorce in Ontario?

8. Binding Agreement: At the end of the mediation process, a mediator provides the participants with a mediation report or memorandum of understanding summarizing the outcome of the mediation. Generally this document is non-binding, and it is the role of the lawyers to assist the participants with incorporating the terms of any agreement reached in mediation into a legally binding separation agreement or court order.

9. Breakdown of Mediation Process: if the mediation process breaks down, mediation participants will need to use another process to resolve their dispute. Their options include to continue to try to negotiate a resolution with the assistance of their lawyers, engaging in the collaborative process, or applying to court. A lawyer who has acted for a party in an unsuccessful mediation may continue to represent that party in court, should court become necessary.

More information about the mediation process is available on our blog: How Does Mediation Work for Separation and Divorce in Ontario?

Collaborative Practice

Collaborative practice (formerly referred to as collaborative law) is another alternative dispute resolution method that emphasizes cooperation and problem-solving. Collaborative practice is similar to mediation in that it is a voluntary and confidential process, which empowers participants to make their own decisions.

Here is how collaborative practice it differs from family mediation:

1. Collaborative Team: In collaborative practice, each party is represented by their own lawyer who directly participates throughout the process. Collaborative practice often also involves other professionals such as financial advisors and mental health professionals who are trained in collaborative practice and work with the lawyers as a part of an interdisciplinary professional team.

2. Participation Agreement: At the outset of the collaborative practice, all participants, including the lawyers, sign a contract committing to resolving issues without going to court. This contract is referred to as a collaborative participation agreement.

3. Structured Team Meetings: The collaborative process is conducted through a series of structured meetings which involve the participation of both participants, both lawyers, and other members of the collaborative professional team.

4. Binding Agreement: Once an agreement is reached through collaborative practice, the lawyers who have participated throughout the process will work together to formalize the agreement into a legally binding contract.

5. Breakdown of the Collaborative Process: the terms of a collaborative participation agreement specify that if the collaborative process breaks down and court becomes necessary, a lawyer who has represented a party in the collaborative process cannot act for that party in court. This clause is designed with good purpose to discourage both lawyers and participants from threatening court action as part of the collaborative process. However, it means that if the process fails and court becomes necessary, the participants will need to retain new legal counsel.

Choosing the Right Approach

Family mediation and collaborative law share the overarching goal of promoting peaceful conflict resolution in family matters. Selecting between family mediation and collaborative practice depends on the nature of the dispute, the level of cooperation between parties, and individual preferences.

Here are some considerations to keep in mind:

1. Communication Dynamics: If participants are willing and able to directly communicate with one another, mediation is generally appropriate. However, where one or both parties struggle to communicate effectively or where there is a power imbalance between the participants, engaging collaborative lawyers who can help their clients to communicate their goals and interests can be beneficial.

• Complexity of Issues: Both mediation and collaborative practice can be used to resolve complex financial matters; however collaborative practice may be better suited to situations where there is both complexity and a difference between the participants in their knowledge or understanding of the issues, as the participation of knowledgeable collaborative lawyers in meetings can provide needed additional support.

• Cost and Time Considerations: Collaborative law may involve higher costs due to the involvement of multiple professionals, whereas mediation generally tends to be more cost-effective. Additionally, the timeline for reaching a resolution may vary between the two approaches, particularly where multiple professional schedules need to be considered when booking meetings.

Both mediation and collaborative practice are effective processes for resolving disputes navigating the issues that arise from separation outside of the court room. Sometimes the best choice between these two processes is obvious from the outset of separation. More often however, it may initially be unclear at as to which of these options is best.

Collaborative mediation has emerged as a forward-thinking approach that meets the evolving needs of families looking to avoid litigation. By combining the strengths of mediation and collaborative law, collaborative mediation offers a holistic and client-centered pathway to resolution.

Collaborative Mediation

Unlike traditional family mediation, collaborative mediation involves each party having their own collaborative lawyer present during the mediation. This process integrates the principles of mediation and collaborative law, offering a hybrid approach to family dispute resolution when necessary.

As both trained mediators and collaborative professionals, collaborative mediators are able to offer mediation services in the traditional manner and also within the collaborative process.

Collaborative Mediation can be initiated in two ways:

1) Starting with Mediation: As mediation unfolds, it may become evident that certain disputes necessitate the expertise and support of lawyers for resolution. When a collaborative mediator guides the process, there is a seamless transition from mediation to collaborative practice. This transition enables lawyers to actively engage in the mediation process under the terms of a collaborative participation agreement, underscoring the commitment of all involved parties, including participants and their lawyers, to resolve the dispute outside of court.

2) Starting with Collaborative Practice: as the collaborative process progresses, sometimes communication difficulties and conflicts arise between participants or their lawyers which necessitate the expertise and guidance of a trained mediator to resolve. In such circumstances, a collaborative mediator can be integrated into the collaborative process to facilitate communication between all participants and navigate impasse to arrive at a resolution.

Embracing Collaborative Mediation: The Teal Family Mediation Philosophy

At Teal Family Mediation, our guiding philosophy is to offer separating couples a customized process with tailored professional supports that meet their family’s unique needs. Achieving this balance entails navigating between excessive professional intervention and insufficient assistance. As part of our philosophy, we embrace both a team approach to traditional mediation, incorporating the involvement financial experts and family professionals into the mediation process as necessary, and we support the transition from mediation to collaborative practice when warranted.

Our mediators are trained collaborative professionals. Should the complexity of the issues or dynamics between the parties warrant it, our mediators can facilitate the involvement of collaborative lawyers and other collaborative professionals to provide support and expert guidance.

By being equipped to foster the seamless transition from mediation to collaborative law, couples can begin the Teal Family Mediation process with the confidence that should they require the direct participation of their lawyers in the process, they can do so under the terms of a collaborative participation agreement if desired. This enables them to engage lawyers while upholding their dedication to address their issues in a non-adversarial manner, prioritizing goals and interests, and keeping their separation out of court.

Conclusion:

In conclusion, whether through mediation, collaborative law or collaborative mediation, by engaging the right professionals families have access to innovative and effective methods for resolving disputes outside of the courtroom. Through understanding the distinctions between these approaches and all of their available options, families can make informed decisions that prioritize their well-being and the well-being of future generations, paving the way for a more harmonious and collaborative family justice space.

If you are interested in learning more about the Mediation and Collaborative Mediation services that Teal Family Mediation provides, contact us to schedule a complimentary Discovery Call.

We can work it out. Together.

Teal Family Mediation is team of professional 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.

 

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.