Mediation is a type of Assisted Dispute Resolution, or 'ADR' - a way of resolving a dispute other than going to court. A trained, impartial (‘neutral’) mediator helps the parties to reach agreements about family law issues like parenting arrangements, child support, spousal support, and the division of property. In mediation, the mediator will assist each of you to talk about your needs and issues, and will help the parties negotiate to resolve the issues in appropriate cases.
There is a mediation service available through some Family Courts and through the Supreme Court (Family Division). Check with your local court to see if mediation is available through that court. Usually, you must have an active court application to be referred to mediation through the court.
You can also access mediation services by hiring a private mediator. You may find a mediator by searching in the Yellow Pages or online, through Family Mediation Canada, or through the Legal Information Society's mediator referral service. If you have a lawyer, your lawyer may be able to recommend a mediator.
Many mediators are trained as lawyers, or social workers, but must be neutral when providing mediation services. This means that they cannot give either of you legal advice, and cannot help one person to gain an advantage over the other. The mediator will usually draft a document called a Memorandum of Understanding (MOU) if an agreement is reached on the issues being discussed. If the mediation is being done by a court-appointed mediator, then the mediator may prepare a court order setting out the terms of the agreement. Legal advice is recommended in all cases.
Going to mediation is always voluntary – the parties must agree to go to mediation. Mediation is not appropriate where there are any risks to safety or fair negotiation. For example, mediation may not be appropriate where there is a history of violence between the parties, or where there is a power imbalance between the parties (where one party can easily take advantage of the other). Mediators will hold a pre-mediation session with each of the parties to make sure that mediation is appropriate.
Generally, there will be a fee for mediation. If you are referred to mediation through court, the fees paid are determined on a sliding scale, based on each party’s income. If you have a low income you may not have to pay a fee at all. If you hire a private mediator, you will pay the fees that that mediator charges for their services.
Dispute resolution methods such as mediation are increasingly recognized as valuable tools for settling differences, especially in family law. For many people, mediation can provide a flexible way of dealing with a dispute, because it can be suited to meet different needs and interests. When exploring mediation as an appropriate choice in family law matters, it is important to assess whether each person:
- has freely chosen to take part
- will be safe in the mediation process
- can state their own views on the issues to be resolved
Mediation is not a good choice when either person in the dispute is not willing to take part, there has been abuse in the relationship, or for other reasons that make it difficult for one or both people to express their needs and interests.
What is mediation?
In family law matters, mediation involves a neutral third party who assists you and the other person in a family dispute to come to an agreement about parenting arrangements, support issues, and property. The mediator will help you and the other person identify your needs, clarify issues, and, where possible, reach a workable agreement that fits your particular situation. If an agreement is reached, it can be put before a judge and serve as the basis for a consent order. If this happens, you may not have to appear in court.
How does mediation work?
A trained mediator meets with you and the other person - separately at first, then together - to help you both identify the issues. With the assistance of the mediator, you then consider and develop options that are acceptable to you both. Mediators do not give legal advice. Mediators do not force you to reach an agreement.
Pre-mediation is the first step to explore whether mediation is appropriate and workable in your case. All cases must go to pre-mediation before going to mediation. A mediator meets with you alone and then with the other person, at a separate time, to discuss whether mediation is a suitable option in your case.
If mediation is appropriate, each person will sign the Agreement to Mediate, which outlines the way the mediation will be carried out. You will then begin to meet together with the mediator (sometimes you may still meet separately) to help you both identify your needs and interests. With the assistance of the mediator, you then consider and develop options that are acceptable to you and the other person. The mediator must remain neutral, and therefore will not provide legal advice. Mediators are also not permitted to conduct counselling or therapy or assessments in the cases they are mediating.
Mediation does not work in situations where personal safety is at risk, where there is a history of violence, or where one of the parties is uncooperative. If this describes your situation, bring it to the attention of court staff.
What are the goals of mediation?
The goals of mediation are:
- to provide an alternative method of resolving issues, where appropriate
- to encourage the non-adversarial resolution of issues
- to develop an agreement acceptable to both parties
What are the advantages of mediation?
The advantages of mediation are:
- you may not have to go to court
- you may save time and money
- you have a greater say in the decisions about your own family
- you, not a judge, make decisions about your own family
- you work toward creating an agreement that considers your needs and interests and those of the other person
- you and your children benefit when you resolve your issues in a positive manner
- you may improve communication that may help in future contacts, like parenting, with the other person
- you have the privacy to discuss sensitive issues
- you can clarify issues, needs, and interests
Do I have to attend mediation?
No. Attendance at mediation is voluntary. A court officer may suggest mediation, but you are not required to go if you do not agree.
What cases should not go to mediation?
Mediation is not a good choice if:
- either person does not want to mediate
- there is physical violence or emotional abuse, or a history of abuse that may suggest a risk to safety and fair negotiation
- there are threats or coercion in the relationship or in going to mediation
- there is a pattern of control and manipulative behaviour in the relationship
- there are risks to the safety of either person, children, or others
- there are serious mental health concerns or addictions (especially if it suggests a risk to safety and fair negotiation)
- either person does not bargain in good faith (for example, holds back information) or will not follow the Agreement to Mediate
What's the difference between mediation and conciliation (court-based dispute resolution)?
In the Supreme Court (Family Division) or Family Court, the court officer may conduct a process called conciliation. Conciliation can also be called court-based dispute resolution. The court officer - sometimes also called a 'conciliator' - helps the parties by:
- sorting out what issues need to be resolved
- making sure they both filed the necessary court documents
- reducing conflict and helping them to negotiate a settlement of their issues without going to court
- referring them to appropriate ways to have the case resolved if the matter cannot be settled in conciliation.
Mediation is a separate process, which allows you more time to discuss and negotiate with the other person. Also, in mediation the records of your discussion are confidential.
How many sessions will I have to attend?
The number of sessions you attend is up to you, the other party, and the mediator. If you are referred to mediation through the court's program, you will be provided with a limited number of sessions, based on the issues to be resolved.
Does mediation cost anything?
If you go to mediation through the court-referred program, there is a sliding scale of fees to attend mediation, based upon your income. In some circumstances, the fees are waived. Click here to see the mediation fee schedule (scroll down to the table at (19)).
If you hire a private mediator, you will pay the fees set by that mediator.
Is mediation confidential?
Mediation is considered a closed process, which means all communication, documentation and recorded notes used in mediation are treated as confidential. The mediator cannot be called as a witness in any court proceeding. The mediator will not disclose any information without your permission and that of the other person. There are exceptions to this where required by law including child abuse and abuse of vulnerable adults. It is important to ask your mediator about their policy on confidentiality.
What is the role of children in mediation?
The role of the children in mediation will be up to you, the other parent or guardian, your children, and the mediator. Although the children are often an important focus of the mediation, their direct involvement may not be appropriate because they are too young and the decisions need to be made by the parents or other guardians. However, in some cases, it may be important for them to be involved to discuss their views about decisions affecting them. This may happen with older children, like teenagers.
How do I find a mediator?
If you have been referred to mediation through the court's program, you will be given the name of the mediator assigned to your case. If not, you may be able to find a private mediator by checking with Family Mediation Canada, or through the Legal Information Society's mediator referral service. If you have a lawyer, your lawyer may be able to recommend a family law mediator to you.
As mediation is a paid service, court staff cannot recommend which mediator you should choose or provide you with a list of private mediators.
What do I need to know about the mediator?
Mediators come from a wide variety of professions and use different styles of mediation. Important things to look for include experience, reputation, educational credentials, mediation training, knowledge of a particular field, and membership in a mediation organization like Family Mediation Canada.
Mediators on the court's roster have completed a selection process based on a set of criteria. They are all experienced professionals either in the field of social work or law.
How can I find out if mediation is the best approach for me?
- you can consider your options when you discuss your situation with a court officer
- you can consult a lawyer to determine if mediation is suitable
- you can discuss your situation with the mediator, before mediation takes place
Can someone attend mediation with me?
You have the option of having a support person, such as a friend or family member, attend the mediation sessions with you. However, this must be agreed upon by the other party and the mediator. Their role, if they attend, is to support you - they do not take an active part in the mediation process.
Do I need a lawyer?
A lawyer is recommended to provide independent legal advice throughout the mediation process. Lawyers have many functions to perform in connection with their clients' participation in mediation. Your lawyer can:
- provide initial legal advice, which includes possible options and their consequences including a recommendation based on your needs and goals
- help you determine if it is in your best interest to take part in mediation
- review legal documents to educate you about what the documents mean, which documents are important, and how to use them during mediation
- attend and participate in the mediation session if this is agreeable to you, the other party, and the mediator; alternatively, they may remain indirectly involved by providing advice to you before, during and after mediation sessions
- review the draft agreement reached and have the agreement filed with the court as a consent order
If issues remain unresolved your lawyer can continue the legal process by preparing you to go to a settlement conference or hearing.
What happens when we reach an agreement through mediation?
The mediator can draft an agreement. However, this agreement should be reviewed by a lawyer. You will be given this opportunity before signing. This agreement can form the basis of a court order that can be issued by the judge.
What happens if we reach agreement on some things but not on others?
If you can agree on some of the legal issues, the mediator can draft an agreement to cover the areas which you have agreed upon. It can form the basis of a court order. The areas that can't be resolved by mediation can be referred to your lawyers or can be presented in court for the judge to make a decision.
What happens if we cannot reach an agreement through mediation?
The mediator will refer you to your lawyer or a court officer, to discuss your options. If you were referred to mediation through the court's program, the court will be informed only that you were not able to reach a mediated agreement. In closed mediation, the details of discussions during mediation are not disclosed to the court.
How do I know if I should take my case to court? What are the alternatives?
The following video was made available through the Public Legal Education and Information Service of New Brunswick and Family Law NB.