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Mediation and Family Law
Walter Drescher
Walter Drescher

There is no doubt that the family justice system in Ontario is overburdened with an increasing number of divorce and separation cases. The seemingly ever-increasing number of separating parties opting to litigate in court has called for law reform and proposals for an overhaul of the current court process. Earlier this month Ontario has made mediation mandatory for all cases prior to heading to family court. However, the logistics still need to be finalized on exactly how it will work. While encouraging disputing parties to settle their issues without litigation can assist in decreasing the backlog of cases that are before the courts, making mediation a mandatory step may not be useful in all cases. There are certainly some benefits to mediation. Through mediation, the parties are directly involved in fashioning (with the help of a mediator) a settlement that suits their own unique interests. This is possible because the parties take an active role and are able to vocalize their concerns, fears and wishes in a neutral and safe environment. Where parties are able to effectively communicate and compromise, mediation can be a quicker and less expensive alternative to the court process and the parties should be encouraged to take this route. Overall, mediation is cheaper, quicker and more satisfying to be part of your own settlement. Despite the benefits, mediation is not ideal for all parties or in all situations. Compromise is the key for success in mediation. It is also important to know that the mediator does not represent either party (like a lawyer would) and does not have his or her best interests in mind. The mediator is there to assist the parties reach a settlement. When entering into mediation, both parties should have a full understanding of what their legal rights and obligations are and cannot rely on the mediator to provide either of them with legal advice. There are no winners and losers in mediation. There is no seeking vengeance against the other party and there you won't get your "day in court". However, some people feel as though they need a judge to hear their case and make a ruling based on facts, evidence and the law. Win or lose, some people simply need to hear a judge make a final decision. Often commencing court proceedings are necessary in order to force a party to respond to requests for disclosure or simply to acknowledge that there are outstanding issues stemming from separation that require resolution. When dealing with parties who do not wish to respond, forcing mediation on this person will likely prove to be futile. Mediation is not binding and should one party wish to withdraw from the process, litigation is likely the only viable alternative. Nonetheless, it is important to canvass all possible avenues for resolution to ensure that litigation is the best option for you. Where litigation is absolutely necessary, the parties should not be encouraged to opt out of the court process simply because of cost and delay.

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