What Is Family Law Mediation and How Does It Work in Ontario?

When a relationship ends, the legal process is not the only thing people are navigating. There may be children to think about, bills to pay, a home to sell, and a future that feels uncertain. Although going straight to court may be appropriate in certain circumstances, it is not in all situations as it can increase costs, the time it takes to reach a resolution, and the animosity between the parties.

Family law mediation is an alternative dispute resolution method, other than going to court, that allows parties to come to a resolution through a voluntary process of self-determination where parties remain in control of the process and the outcome. 

In Ontario, family law mediation can be used following a separation or breakdown in a relationship to assist parties in discussing parenting time and residential arrangements, decision-making responsibility (formerly referred to as “custody”), child support, spousal support,  property and equalization issues .

Rather than having a judge, who is a virtual stranger to the parties and their family, dictate how these matters will be resolved, family law mediation is a voluntary process by which parties exchange information and attempt to resolve their matters through a facilitated conversation(s) with a neutral, qualified, third-party mediator. 

The mediator is not a judge and cannot make binding decisions. They do not take sides, and they do not give legal advice. The mediator’s job is first to determine if mediation is appropriate for the parties, and if so, to design a mediation process that is safe and confidential (e.g., group mediation or shuttle mediation). 

The mediator will provide legal information and resources where appropriate and will facilitate the conversation amongst the parties in an organized, safe, and respectful way in an attempt to reduce the conflict and help both parties reach an agreement they both can live with. 

What Happens in Family Mediation?

In Ontario, family law mediation is one form of alternative dispute resolution (“ADR”) that is widely supported by those who work in the field of family law. 

Mediation is a voluntary process that typically proceeds as follows:

Intake and Screening

Step one is for each party to separately meet with the mediator to complete an intake so the mediator can determine if mediation is appropriate in their  circumstance.

The mediator will ask questions about the history of the relationship, any past or present safety concerns, incidents of domestic violence and abuse, any mental health or addiction concerns, and restrictions on any current communication. They will provide information about legal resources, discuss confidentiality (and exceptions to confidentiality), and will design an appropriate mediation process if they determine the mediation will proceed following the intakes. 

Designing a Safe and Effective Mediation Process 

Following the intakes, if mediation is deemed appropriate by the mediator, the mediator, together with the parties, will clearly determine the issues for mediation, which may include child-related issues such as parenting time, decision-making responsibility, and child support, as well as property-related issues, equalization, spousal support, etc. The mediator will also ask for parties to provide any relevant financial disclosure, court orders, agreements, or other relevant information prior to the mediation commencing. 

The mediator will then determine how the mediation sessions will be held. Whether it be a group mediation where the parties (with or without their lawyers) and the mediator are all in the same room (either physically or virtually), a shuttled mediation, where parties are in different rooms and the mediator goes back and forth between the parties, or some combination of both. Lastly, they will schedule a date and time when the mediation will commence.

Mediation Session(s)

Once the mediation date has arrived, the mediation will commence. The mediator will keep the conversation focused and will assist the parties in discussing relevant information in an attempt to reach an interim or final resolution of all or some of the issues, which may include parenting and holiday schedules or child or spousal support and financial calculations, etc.

Reaching a Settlement (Mediation Reports are NOT Legally Binding)

When the parties are successful in mediation and are able to reach an agreement (on some or all of the issues), the mediator will generate a Mediation Summary Report outlining the agreed-upon resolution(s). The Mediation Summary Report is NOT a legally binding document. The report is provided to the parties to each separately get independent legal advice on and to have made into a legally binding separation agreement or court order, usually with the assistance of their lawyers. 

Court Application vs. Mediation 

Commencing a Family Law Application in the Ontario Court of Justice or Superior Court of Justice provides for clear procedure, binding timelines, accountability, and determinative results; however, it can also bring significant delays, increased costs, animosity, and public hearings. For many separating couples, and especially parents, a court application is not the best first choice.

Here are some reasons family law mediation is often considered prior to (or alongside) the court process:

Time and Cost Savings 

Family litigation can often linger on for years on end. Each conference, motion, and trial date requires scheduling with the court, often with months in between dates. These appearances themselves take time and involve family lawyers preparing material and attending court, which increases legal fees, and waiting for decisions. Family mediation, on the other hand, can be faster, more efficient, and more cost-effective. 

Privacy

The family law court process is a public process, and anyone may become aware of sensitive information about your family and children, finances, relationship history, or final outcomes. Mediation, on the other hand, is an entirely confidential process where your personal details will not be disclosed unless someone is in danger of imminent harm or the mediator is court-ordered to disclose information (which is very rare, if ever). 

Control over Outcomes 

In the court process, if the parties are not able to resolve their family law matters, a judge ultimately will make a final decision via a final court order. Mediation, on the other hand, is a process of self-determination where no settlement is imposed, but rather the parties are assisted by a mediator in reaching their own resolution, which allows the parties to remain in control of the decision rather than leaving it up to a virtual stranger (the judge) to determine the outcome. 

Impact on Co-Parenting

For many separating couples, co-parenting their children will be a reality for many years to come. Parents with sole or joint decision-making and a parenting time schedule will need to discuss and exchange information frequently. 

Mediation can assist with this by providing a less adversarial means of resolving their matters and assisting the parties in mutually determining a clear process for how decisions, communication, and information will be shared following separation. 

Types of Family Mediation in Ontario

Ontario has more than one route to family law mediation.

1. Court-Connected Mediation

All family law litigants within the Ontario Court of Justice or the Superior Court of Justice are able to access free mediation services on the day of court. This allows parties to potentially complete the intake process, determine if mediation is appropriate for them, and begin to mediate some (or all) of their issues. These services, however, are usually limited to a certain number of hours and focus on specific issues, but additional mediation sessions can be scheduled if the parties are making progress on resolving their matter

1. Private Family Mediation

Separating families that are not already litigants within the family court system, or family law litigants that  require additional services to the court-connected mediation services, may also arrange for a private mediation. Private mediation takes place outside of the court structure and can be flexible in terms of process, procedure, scheduling, time constraints, and potentially even fees. 

The Role of Family Lawyers in Family Law Mediation

Mediation does not replace legal advice. In fact, mediators are prohibited from providing legal advice; however, mediation works best when parties understand their legal rights and obligations under the Ontario family law legislation so they can negotiate and make informed decisions. 

Here’s how family lawyers and mediators often work together in assisting the parties:

• The family law mediator will manage and control the mediation session(s) and keep the discussion on track and focused, taking place in a safe and productive manner. 
• A family law lawyer (who can only act for one party in a matter; otherwise, they are in a conflict of interest) can assist their client by explaining the legal issue and how the law applies, reviewing and discussing settlement options, and ultimately preparing a legally binding document by way of a separation agreement or court order if the parties are successful in reaching a resolution. 

Is Mediation Right for You? 

Mediation is not appropriate in all circumstances or may only be appropriate with careful planning and strong safeguards in place. Determining if mediation is right for you requires a careful analysis of the particular matter and potential risks at hand with a highly skilled and qualified mediator. 

Mediation may not be appropriate for you if: 

• There is a history of domestic violence or abuse (physical, emotional, financial, sexual, etc.) and coercive control or power imbalances
• There are mental health issues or addictions that impair one or both parties’ abilitiesngoing concerns following separation (e.g., threats, stalking, harassment, etc.)
• There are power imbalances, which may include a personality, intellectual or financial imbalance.
• If you are unable to stand up for yourself and feel safe in advocating for what you feel is fair or in your family’s best interest. 

In Ontario, the family law mediation intake process is designed to screen for these types of risks, and where appropriate, decline to proceed with mediation. If one or more of these scenarios apply to your matter, mediation may not be an appropriate dispute resolution method for you, and a court application may be a more appropriate and safe option. 

Family Law Legal Resources 

People trying to navigate separation often feel like they have to learn a new system overnight. Alongside legal advice and mediation, there are public resources that can help:

• The Law Society Referral Service can connect people with a lawyer for an initial consultation.
• Legal Aid Ontario may assist with advice or provide certificates for legal services for those who qualify.
• Cleo, Family Law Guided Pathways and Steps to Justice offer explanations and guided tools for forms and procedures.
• The Family Law Rules  explain the court process and procedural rules litigants must follow if in the court process,  even if someone hopes to resolve matters in mediation

What’s Next…

If you or someone you know is considering family law mediation, it is recommended that you do the following:

• Determine whether your situation is safe and appropriate for mediation
• Get independent legal advice prior to mediation commencing and especially before making a mediation summary report a binding legal document.
• Get legal advice to determine what a realistic outcome may look like under Ontario law
• Determine if mediation will proceed with or without your legal counsel present. 

Talking with a family law lawyer or mediator at Foote Law can help you understand whether mediation is appropriate for your case or if an alternative dispute resolution method may be more appropriate. 

Request a Consultation

Announcement 

As a law firm focused on providing legal services for the family, Foote Law is happy to announce the Foote Law—Family Law Mediation Services are coming soon. 

Located in Orangeville, ON, and providing services to all surrounding areas within the Greater Toronto Area, Foote Law can help you understand whether family law mediation may be appropriate in your circumstances and how you may prepare for it. Not only will Foote Law be providing family law mediation services SOON, but we are also here to assist in reviewing mediation reports and drafting separation agreements or court orders and providing independent legal advice before or after a family law mediation.