When is Family Mediation Appropriate?

When is family mediation appropriate? Mediation is probably appropriate when all/most of the following conditions exist:

  • The parties appear to both be willing to try mediation in order to find an acceptable settlement.
  • Each party is able to articulate to the mediator his or her own positions and the reasons behind those positions.
  • Both advise that they feel they will be able to fully participate in the proposed process without fear of harm to them or any third parties.
  • Both parties are sufficiently informed about their and the other’s alternatives to a negotiated agreement or are willing and able to become so informed.
  • Based on the information gained during the screening process, the mediator believes that he or she can design and deliver a mediation process that will “do no harm”. This includes the mediator understanding all relevant cultural differences, any issues of mental illness or addiction, any possible personality disorders, and the different ways in which each party absorbs and communicates information, among other things.
  • Both parties are able to tolerate a balanced process based on the principles of self-determination, safety, voluntary participation as well as mediator neutrality and impartiality.
  • Both are willing to hear what the other side has to say and are able to acknowledge that there may be ‘reasonable reasons behind the unreasonable positions’ without requiring agreement.
  • Each party is agreeable to meeting the procedural needs of the other and willing to consider options that meet the other’s substantive and psychological needs as well.
  • Both have a commitment to finding an expeditious, mutually satisfactory resolution to the problem.
  • Both are willing to have the voice of the children heard in an appropriate way, and to facilitate that process.
  • Both are able and willing to negotiate in good faith (e.g. no lying, no manipulation, and no threats).
  • Both are willing and able to provide all required or needed information and documents, to take responsibility for obtaining all necessary advice and to tolerate the other obtaining such advice, including agreeing to having lawyers attend the mediation if requested by a party or the mediator.
  • Both are willing to take responsibility for making decisions, rather than seeking to rely on the mediator’s opinion as a means of persuading the other.
  • Each party has something to gain by mediation and some risk of not mediating.

About Hilary Linton

Hilary Linton is a Toronto lawyer, mediator, arbitrator and teacher. After litigating family and civil disputes for 14 years, she started Riverdale Mediation which is internationally recognized for high quality dispute resolution services and innovative ADR training. Teaching hundreds of adults every year, Hilary and her team at Riverdale have designed a wide range of courses. Hilary has been honoured with the inaugural James G. McLeod Professorship in Family Law at Western University Law School, and the Ontario Bar Association Award of Excellence in ADR in 2014. She has taught many ADR courses as an adjunct professor at Osgoode Hall Law School, Western Law and Toronto Advanced Professional Education.

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