Mediation is a type of Alternative Dispute Resolution, 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 custody, access, 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 Divisions). 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 Nova Scotia or Family Mediation Canada. 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.
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.