What is Mediation ? What is Neutral Evaluation ? What is Arbitration ?
By: Steven Benmor, B.Sc., LL.B., Family Lawyer
Jurisdiction: Ontario (Canada)
What is Mediation?
Mediation is a process whereby the spouses jointly retain a professional Mediator to help them reach an agreement that they are both comfortable with. Usually, only the spouses, without their lawyers, will meet with the Mediator. The role of the Mediator is to help the spouses arrive at their own agreement. The Mediator’s role is not to give an opinion or force one spouse to accept the other spouse’s terms. It is certainly not the role of the Mediator to give legal advice.
Even when the spouses decide to mediate their issues, it is most advisable for each spouse to have a lawyer provide him or her with legal advice.
Do both spouses have to be in the same room for Mediation?
The better the communication between the spouses, the more successful Mediation can be, because the spouses will each actively participate in the Mediation process. However, when the spouses are unable to deal directly with each other, Mediation can still be useful. In this case, the Mediator may start by meeting with both spouses to discuss the objectives of the Mediation and then separate them so the Mediator can meet with one spouse at a time, in different rooms. The Mediator can then shuttle between the two spouses to mediate an agreement.
Now that I have decided to separate from my wife, what is the process to settle all our outstanding issues regarding our children, support and property division?
Before a spouse can decide upon the process, he should obtain legal advice to determine what his Family law rights and obligations are. This is very important because the next few steps that he takes can permanently affect the outcome of his case and the legal obligations that he will assume. At this critical stage, each spouse should immediately obtain legal advise from an experienced Family lawyer.
Can you please list the different methods used to settle the outstanding issues?
Once the issues that need to be settled are identified and each spouse has obtained legal advice, the spouses may negotiate, mediate, litigate or arbitrate the outstanding issues. That is, the spouses may negotiate an agreement amongst themselves or instruct their lawyers to negotiate an agreement on their behalf. The spouses may agree to retain a Mediator to assist them in reaching an agreement, or one spouse may decide that it is necessary to obtain a Court Order and, therefore, decide to litigate. Alternatively, the spouses may decide to submit their issues to binding Arbitration.
What is Neutral Evaluation?
Other than Mediation and litigation, other methods that are available to settle the outstanding issues are Neutral Evaluation, Arbitration and Mediation/Arbitration. Neutral Evaluation is a process whereby the spouses jointly retain a professional evaluator, who is usually an experienced Family lawyer, to provide a formal opinion of the probable outcome of the issues presented to the evaluator. This process usually involves the participation of the spouses and their lawyers. The lawyers present the evaluator with a brief that consists of each spouse’s position, the relevant evidence and the legal authorities that he or she relies on. The purpose of Neutral Evaluation is to assist the spouses and their lawyers to overcome an issue that prevents the case from moving forward. For example, one spouse may believe that spousal support should be paid for a period of no more than 5 years, while the other spouse believes that spousal support payments should not end. In Neutral Evaluation, unlike Mediation, the evaluator is specifically retained to provide an opinion and the reasons for that opinion.
What is Arbitration?
Other than Mediation and litigation, other methods that are available to settle the outstanding issues are Neutral Evaluation, Arbitration and Mediation/Arbitration. An Arbitration is a process similar to litigation. The Arbitrator hears the evidence of each spouse, and the arguments made by each spouse’s lawyer, and then delivers a written decision that is as enforceable as a Court Order. An Arbitration is a formal process conducted under the Arbitration Act which requires the Arbitrator to comply with certain procedures. As opposed to the long wait to get a trial date in court, spouses who agree to submit to Arbitration jointly select an Arbitrator, sign an Arbitration Agreement and schedule a date for the hearing. Arbitration and the decision rendered by Arbitrator are usually kept confidential. The cost of Arbitration is either shared by the spouses or, if they wish to give the Arbitrator the power to award costs, the Arbitrator may order one spouse to pay the other spouse’s costs of the Arbitration.
What is Mediation/Arbitration?
Other than mediation and litigation, other methods that are available to settle the outstanding issues are Neutral Evaluation, Arbitration and Mediation/Arbitration. Mediation/Arbitration is a dispute resolution method that is a hybrid of Mediation and Arbitration. There is a debate as to the propriety of a professional acting as both a Mediator (who does not give an opinion or decision) and an Arbitrator (whose only role is to give a decision). Mediation/Arbitration is prohibited by the Arbitration Act, however, the spouses may specifically waive that prohibition. In Mediation/Arbitration, the Mediator/Arbitrator first attempts to settle the issues through Mediation. Mediation may turn into Arbitration if the Mediator/Arbitrator determines that Mediation has failed. The Mediator/Arbitrator then ignores all the information that had been exchanged in the Mediation and hears the matter afresh as an Arbitration. The Mediator/Arbitrator cannot mediate while he or she is arbitrating and cannot arbitrate while he or she is mediating.
How can Mediation help us?
When a marriage ends, each spouse usually wants to resolve all outstanding issues as quickly and inexpensively as possible. But at the time of separation, there may be poor communication between the spouses. Although they may both want to resolve the same issues, they require a professional to assist them in arriving at terms that are fair and agreeable. A Family Mediator is a professional who will work with both spouses to facilitate a resolution of the issues that need to be resolved. Although many Family Mediators are lawyers by training, they do not represent either spouse. It is critical that each spouse retain a Family lawyer to be advised of his or her rights (before and during the Mediation process) and be provided with strategic advice. At the conclusion of a successful Mediation, the spouses will have arrived at terms of settlement that can be incorporated into a Separation Agreement. This is prepared by one spouse’s lawyer for review and consideration by the other spouse’s lawyer.
What are the different types of Mediation?
Before Mediation begins, the spouses will decide whether the Mediation will be open or closed. In open Mediation, the Mediator may be asked by either spouse to write a full report on what happened during the Mediation including the reasons why the Mediation was not successful. If the Mediation is not successful and the case proceeds to court, the report may be considered by the Judge. Also, the Mediator may be required by either spouse to testify in court. In closed Mediation, the information exchanged by the spouses is confidential. The Mediator’s report will only mention whether an agreement was reached, but will not provide any details of why an agreement was not reached. In closed Mediation, neither spouse can compel the Mediator to testify in court.
What is the cost of Mediation?
Family Mediators operate as private businesses and are not regulated, therefore, their fees can vary. Some courts and community agencies offer Mediation services for fees that are charged according to the spouses’ incomes. A Family lawyer will be able to provide recommended names of Family Mediators and the availability of Mediation services through the courts and community agencies.
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About the author: Steven Benmor practices Family Law in Toronto, Ontario, Canada. Visit Steven Benmor’s online Family Law Resource Center for concise answers to many more frequently asked Family law questions, feature articles on Family law topics, dozens of links to other Family law websites, and more at www.benmor.com. The information on this page is for discussion purposes only. It is by no means legal advice or even a statement of the law on this subject. Please do not rely on the accuracy or completeness of this information. Any question or concern elicited by the information on this page should be taken to a lawyer who will consider the facts of each case and the legal remedies available. |
