What is family law mediation?
Family law mediation is a form of alternate dispute resolution (ADR) that involves the parties to a family law case and a neutral mediator. The goal of mediation is to resolve some or all of the issues in dispute as efficiently as possible and without involving the court. It is recommended that parties to mediation attend with their respective family lawyers. While some mediations proceed without lawyers present, this can slow down the process as the parties will then have to seek independent legal advice on any proposed settlement. It is a voluntary process and any party can leave the mediation at any point. All discussions during mediation are “without prejudice”. This means that what is said during the mediation is treated as confidential between the parties and neither of them can disclose in a court proceeding what was said during mediation. Except in exceptional cases, a mediator cannot be required to testify in court about what happened during mediation.
What is the mediator’s role?
A mediator does not perform the function of a judge or an arbitrator. Mediators cannot make rulings, decide “who is right”, order any party to do or not do anything or even force either party to carry on with the mediation.
When is a case ready for mediation?
Mediation can be ineffective if the parties have not already exchanged adequate financial disclosure. This is usually done at an early stage of family law cases by the parties’ lawyers. If mediation begins with incomplete disclosure, it is unlikely that a settlement can be reached until the missing information is provided.
What cases are not suitable for mediation?
Cases where there has been incomplete financial disclosure or ones where the existence of hidden assets is a serious issue. High conflict cases where the parties are unable to be in the same room are challenging, but can be successfully mediated if both parties are committed to settlement despite their conflicts. Mediators often use “shuttle mediation” in such cases, keeping the parties and their lawyers in separate rooms with the mediator going back and forth. My personal preference is to do most mediations by shuttling as I find it more efficient and less stressful on all parties.
What is the cost of mediation?
Mediators have different rates and generally charge by the hour. Many, but not all, family mediators are practicing or former family lawyers. My rate is currently $550 per hour plus taxes and disbursements. In most cases the significant disbursements are for the cost of renting a facility for the mediation unless it can be held at the offices of one of the lawyers. The parties are each responsible for one half of the mediator’s fees.
In my experience, both as a mediator and as a lawyer participating in mediation, most mediations result in settlement at the conclusion of a one day session. Some settle after more than one session, but mediations that continue for three or more sessions are relatively rare. If it becomes apparent to me that the mediation has no chance of success, I will suggest we terminate the mediation. Of course, not all cases settle. Compared to the cost of continued litigation, mediation is a bargain, even if it only resolves some issues.
What are the benefits of mediation compared to going to court?
A mediated settlement will be what both parties are prepared to accept, even if they are not particularly pleased with the result. In court, the judge is going to decide the result and the parties have no control over that result.
Mediation can begin as soon as financial disclosure has been completed. Court hearings have to be scheduled weeks and even months in advance.
In mediation, the parties can decide to agree on terms that might be different than what they could expect from a judge. Once the parties leave the decision up to a judge, the result is going to be what the law requires, on all outstanding issues.
What are the steps to get to mediation?
You should retain a lawyer. If you think you may want to use me as a mediator, it is best to avoid any discussion of your case with me until both of you have agreed to use me as a mediator. If I have a discussion with you about your case, that discussion could include some legal advice and that would disqualify me from acting as a neutral mediator.
Your lawyers will begin by exchanging financial disclosure and identifying the issues that are in dispute. At that stage, the parties and their counsel have to decide if they agree to go to mediation.
The lawyers will contact a mediator and arrange a date or dates for the mediation session. Before the mediation begins, the mediator has to speak to each party to assess whether there has been any family violence. This is a legal requirement for all family law mediators. I usually do this by telephone and, at the same time, I obtain some general background information from each party so that I am familiar with the basic facts and issues when the mediation begins.
Prepare for and attend the mediation with your lawyer and be prepared to compromise. Mediation is not a magic solution. Any settlement will require significant compromise by both parties and a mediator cannot create a settlement, only facilitate it.