Is mediation a good way to resolve a family law dispute?
Mediation is one form of alternative dispute resolution (ADR) that women may be encouraged to use during their family court process. In recent years, there has been an increasing emphasis on the use of ADR to resolve family law differences and disputes.
In some family law cases, ADR can be better than going to court. Participants can have more control over their cases, and ADR can be faster, cheaper, and more private than a court case.
However, ADR is not appropriate for all kinds of disputes. In particular, it may not be appropriate in cases of intimate partner abuse or other situations where one partner has more power and control than the other.
ADR is only likely to be successful if both participants have a reasonably similar level of power in their relationship, respect one another, can listen, be open and honest in their communication and are willing to compromise in order to reach an agreement that is acceptable to both of them.
It is not likely to be successful for a woman who has left an abusive partner, because he can use the process to continue to manipulate, intimidate, and control her to get what he wants.
There may be challenges as well if one partner has more power for other reasons, such as having a higher level of education, more self-confidence, greater familiarity with Canadian laws or better English language/communication skills.
By its very nature, ADR assumes the people have an equal ability to negotiate about important issues. If a woman feels threatened or intimidated by her abusive partner, she may be coerced into making agreements that do not ensure safety and freedom from control for herself and her children.
Women often hope that the ADR process will help them resolve issues with an abusive and controlling spouse more quickly and may reduce their demands in the hope of reaching an easier settlement, only to find that the abuser continues to exert control and make more demands. This can replicate the dynamics of abuse, and severely disadvantage the woman and her children.
The woman may still be experiencing threats and may still fear for her own safety and her children’s safety, given past abuse, and/or ongoing abusive behaviour and threats of abuse. When a woman has been previously raped or assaulted, it can be very difficult for her to speak up about her needs or her fears in front of the abuser in the mediation process. Even in shuttle mediation (where the mediator meets with the parties in separate rooms and goes back and forth), if her reports or requests are communicated to the abuser, she may be placed at risk of further abuse or harassment.
Women often fear that they will not be believed because the abusive partner can be very charming and convincing. Abusive men may threaten, for example, that they will obtain custody of the children if the woman does not give up her financial rights. This can be a deadly combination for women, who may assume their partner’s version of events will be given more credibility than their own, and who will do anything to make sure they maintain custody of their children.
If the mediator does not have experience and knowledge in the field of woman abuse, there is a danger that s/he will minimize the woman’s reports of abuse and the ongoing safety risks and will not appreciate the impact of poor family court agreements on the ongoing safety of the woman and the children.
This does not mean that ADR is never helpful in woman abuse situations. Women must be aware of the risks and the importance of choosing a professional with extensive experience with woman abuse cases.
Where the abuse has been ongoing over a period of time, ADR is less likely to be an appropriate option.
There are three main types of ADR that people use to resolve family law disputes: collaborative family law, arbitration and mediation. This FAQ explores the issues related to mediation, a process in which a mediator helps people come to an agreement by talking to each other, even if they are initially in a conflict.
Mediators are generally social workers, psychologists, or lawyers. A mediator is required to be fair and not favour one person over the other. The mediator does not tell the people how to resolve their dispute, but makes suggestions about possible resolutions. It is up to the people to accept or not accept those suggestions.
Even if the mediator is a lawyer, she/he cannot give legal advice. For this reason, it is important to work with a lawyer as well as the mediator through this process.
Mediation is voluntary: no one can be forced to use it and either person can end the process if they are not happy with how it is going.
At the beginning of the process, mediators conduct a screening process individually with each person to satisfy themselves that:
- The people are participating voluntarily;
- Abuse has not occurred to such an extent that either person is incapable of mediating;
- No harm will come to the woman or children as a result of mediation;
- Any inequality in bargaining power can be managed to ensure that negotiations are balanced and procedurally fair;
- The people are psychologically ready to mediate and have the capacity to do so; and
- The complexity of the case does not exceed the mediator’s education, training or competence.
A woman who has been abused and who wishes to access mediation services should ensure that the mediator has expertise in abuse issues.
The woman should be aware of the need for a separate screening interview and should be clear about circumstances under which the mediator will not conduct joint sessions. She should also be clear about how the mediator will protect her confidentiality if it is determined unsafe to proceed jointly or even in shuttle mediation.
Once the initial interviews are complete, the mediator will, typically, meet with both parties to discuss issues and work towards a settlement. In cases involving abuse, the mediator may use shuttle mediation, which means the woman and her partner are in separate rooms and the mediator moves back and forth between them.
It is helpful if both parties seek independent legal advice at an early stage of the process to clarify their legal rights as well as throughout the process and before signing any mediated agreement.
If the mediation is successful and the two people come to an agreement, the mediator typically drafts a memorandum of understanding which both parties sign after they agree that it accurately reflects what they have agreed to.
Once the memorandum is signed, the people should seek independent legal advice before entering into a legally binding agreement. When the woman meets with her lawyer to review the memorandum of understanding, the lawyer will advise her whether or not it is in her best interests. If it is not, then the lawyer should advise her not to enter into a legally binding agreement. If the memorandum is appropriate, then one of the lawyers will draft an agreement or a court order.
It is important that a woman meet with her lawyer for legal advice throughout the process so she can negotiate with full knowledge of her legal rights and the range of appropriate settlements.
Some financial assistance from Legal Aid Ontario is available to people who qualify financially and are involved in a family court mediation. For information, please read our entry, Can a woman can get a legal aid certificate for mediation?
It is best for a woman to be open about the abuse she has experienced when the mediator is doing the initial screening. This will allow the mediator to assess whether mediation is appropriate and, if s/he decides it is, to put appropriate structures in place to acknowledge the power and control issues.
The woman might find it helpful to write down the history of abuse, including anything she thinks her partner might do during the mediation process to try to intimidate her, before she meets with the mediator for the screening process. She can then either use these notes to help her talk about the abuse or, if she is uncomfortable talking about it, give them to the mediator to read.
Before her first session, a service provider can assist the woman write out the key issues she hopes to resolve through mediation, what her desired outcomes for each issue are and, if she knows this, what compromise outcomes she would be willing to settle for. She does not have to show anyone these notes, but they may be helpful to her especially if she feels intimidated by her partner.
We recommend that a woman to take notes during the sessions so she can remember later what her partner and the mediator said and to debrief as soon as possible after each mediation session with a service provider or support person. Use this time to get emotional support, review notes and plan for the next session.
Perhaps most importantly, a service provider can assist the woman make a safety plan for her mediation process that will help her feel both physically and emotionally safer:
- How will she get to and from mediation sessions to minimize any opportunities for her abuser to harass her?
- Does she want to bring a support person to sit in the waiting area so she is never alone?
- Will she ask the mediator for shuttle mediation?
- What will she do during mediation if she feels triggered by something her partner does or says?
- How can she protect herself from harassing phone calls, emails or texts from her partner immediately before or after mediation sessions?
Mediation, like any other family court process including litigation, offers both opportunities and challenges for women leaving abusive relationships. It may work for some women and not for others.
The job of a service provider is to ensure the woman knows as much about it as possible so she can make an informed decision about whether or not to use mediation to resolve her family law disputes and then to support her in whatever decision she has made.