Mediation is a voluntary process of negotiation that is led by a neutral expert in conflict resolution skills. Family mediators are often family lawyers or mental health professionals themselves. Mediators generally do not provide solutions, and unless lawyers attend, mediation does not result in a signed , binding agreement. Rather, parties attend mediation to freely discuss the problems they seek to resolve, what they may need to be able to do that and the range of possible solutions.
Mediators do the following:
- identify those cases that are suitable for mediation, through a process of confidential intake meetings with each person (screening)
- support clients to make the choice to mediate by assessing the supports they will each need in order to participate
- help parties assess their own safety risks and direct them to appropriate safety planning where risk is identified and assessed
- help parties choose to use another process that is better suited for them, where appropriate
- help parties access counselling, resources for their children and other resources to support the family
- help parties access legal and other advice needed to fully participate in mediation
- design a negotiation process that meets the procedural needs of each person
- consider how the interests and views of children can be appropriately identified and addressed
- help parties obtain the financial and other information they need to engage in fair and balanced negotiation
- conduct a fair, balanced and informed negotiation process that is designed to be as safe as possible, emotionally, physically and legally for both parties and the children
- help parties negotiate so that they can identify their respective interests and the range of possible solutions to the problems they seek to resolve
- assist parties in deciding whether to settle if so, on what terms.
Mediation can be “open” or “closed”. Most mediators offer only closed mediation, meaning its is confidential and without prejudice. this means that the parties and the mediator agree that they will:
- keep all communications confidential, subject to the standard exceptions of information suggesting that a child or third party is at risk of harm , or a court order to disclose; and
- that neither party can report back to the court about any offer made during mediation. all proposals made in mediation are made without prejudice to that person’s position in court.
As such, a mediator providing closed mediation may only report back to the court about the terms of a settlement. everything else remains confidential. the purpose of closed mediation is to provide a ‘safe place for difficult conversations,’ and to empower parties to feel free to explore ideas and proposals without fear of looking bad or being prejudiced in their communities or in court.
Sometimes, parties seek open mediation , which can have two different meanings, which can be confusing. Under the Family Law Rules, “open mediation” merely means that the mediator may report back to the court on all of the issues that came to mediation, which settled (and on what terms) and which did not. This is a limited form of ‘open’ mediation.
However, in private practice, some mediators offer a broader form of open mediation, where the parties can agree on what they want the mediator to be able to disclose to a judge, arbitrator or assessor. in such cases, it falls to the parties to define the scope of information that will remain confidential and what can be reported. Open mediation is more complicated in many ways and parties and mediators need to have a full discussion about the possible implications of an open mediation process, including what information may be disclosed, when and how, and how the mediator will be paid for their time.
OAFM (Ontario Association of Family Mediation)
ADR Institute of Canada, Inc.
ADR Institute of Ontario, Inc.