This week we are teaching family law to a class of mediation students. It is only 30 hours, not nearly enough, but we try to use those hours to teach mediators the things they really need to know. One topic we touch on: Can people in family court be ordered to mediate?
In Ontario, there is no such thing as mandatory mediation in family law.
We do have mandatory mediation in civil (commercial) cases and also in estate litigation. But at this point family mediation must always be voluntary.
Judges can do two important things however to encourage mediation in family cases.
1 – they can make an order under s. 3 of the Family Law Act appointing a mediator, but only on consent of both of the parties. Under this section:
(i) the mediator may interview the children,
(ii) the parties must decide if they want a full or limited report. A full report (often called “open mediation”) gives the mediator discretion to include anything they want in the report. A limited report limits the report to whether a settlement was reached and, if so, on what terms.
(iii) the report must be filed with the court by the mediator, who must also provide each party with a copy
(iv) if the report is limited, no evidence of anything said, admissions made or any communications during the mediation is admissible in any proceeding unless the parties consent and
(v) the court shall specify how the mediator is to be paid by the parties.
This section of the Act is rarely used and could be used more often to give some teeth to voluntary mediations.
2 – Under Rule 17(8) of the Family Law Rules, judges hearing conferences can order one or both parties to attend an intake session with the free, onsite family mediation service that exists in every family court in the province. This is a powerful tool in the judge’s tool-box that, again, is rarely used. Court-connected family mediators are usually highly trained professionals with expertise in identifying, assessing and managing power imbalances. They often have a wealth of experience working with people in conflict. The intake sessions with such professionals are confidential and supportive of each person, and often provide the informed but non-judging environment those in conflict need to feel safe enough to negotiate.
There are reasons for and against mandatory family mediation. We believe that if more judges ordered parties to mediation intake, and more judges encouraged parties to consent to orders for mediation, more people would benefit from the many advantages of resolving their own disputes.