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.