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.
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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.