When people imagine settling family conflicts after a separation or divorce, they most often picture themselves in court, before a judge. While litigation is certainly an option if two spouses are unable to settle the terms of their separation on their own, alternative methods of conflict resolution can be equally, if not more effective, than immediately moving toward a trial. With courts facing backlogs and ongoing procedural changes in a post-COVID world, options including negotiation, mediation and arbitration can be excellent ways to move forward, enabling each party to move on with their lives more quickly.
At Boulby Weinberg LLP, we firmly believe in finding the best method of resolution in every circumstance. While we are exceptionally skilled litigators, we don’t automatically take this approach by default, as is often the case in a family dispute. In some cases, a different approach is warranted, such as negotiation or guided mediation. These methods can often have the benefit of limiting aggressive tactics and keeping costs and stress levels down for both parties. No matter which path we take with our client, we provide excellent representation on their behalf.
Mediators do not have to be lawyers, however a mediator who has also practiced family law has a deeper appreciation of the stakes and the legal considerations involved in the process. Boulby Weinberg LLP both represents clients at mediation, and we offer a full mediation service to couples looking to resolve matters outside of the courtroom with the guidance of an experienced and impartial family lawyer. Our partner, Oren Weinberg, is certified as a family mediator by the Family Dispute Resolution Institute of Ontario (FDRIO) and is recognized for his expertise in guiding people towards resolution in a variety of family disputes through mediation and/or arbitration.
Our in-house mediation service also means we are uniquely familiar with the mediation process, making us excellent advocates in outside mediation as well. As representatives, we will carefully present our client’s position and then diligently advocate on their behalf throughout the process.
Many people with limited exposure to alternative dispute resolution may not be familiar with the differences between mediation and arbitration. However, the processes are quite different, particularly in the obligations they impose on the parties. A mediator acts as an experienced guide through the process of resolving a matter, helping to facilitate discussions and negotiations between the parties with the goal of reaching an agreement. An arbitrator, on the other hand, acts in a role similar to that of a judge. The parties each present their respective cases to the arbitrator, who will then render a binding decision.
At trial, judges are randomly assigned to a case without any input from the parties. In contrast, mediation allows the parties to jointly select a mediator that best works for their circumstances. While mediators all help to guide the parties towards a mutually agreeable resolution rather than making an order, some mediators are more hands-on and proactive while others step in only when necessary. Further, some mediators may have necessary specific expertise, helping them to address factors such as complex finances or unique parenting issues. A key benefit of the process is it enables parties to determine how they’d like to proceed and what issues are important to them, and then select the mediator best suited to the circumstances.
Family disputes, by nature, necessitate the discussion of highly personal information. In court, the vast majority of cases are open to the public, and the information discussed is easily accessible. This includes personal details such as salaries, debts, marital indiscretions, and parenting disagreements. In contrast, mediation is carried out behind closed doors, and the details remain confidential. It is important, however, to consider the possibility of future litigation around the terms of settlement following mediation. To secure the confidentiality of documents such as mediation briefs and other materials presented in the mediation process, the terms of settlement should contain a carefully drafted confidentiality clause addressing this. Since mediation, and the confidentiality of the process, is largely determined by the participants, it can be an ideal solution for those who would like to resolve their matters out of public view.
Those who go to trial before a court are at the mercy of docket schedules and courtroom hours. In Ontario, there are several preliminary steps to address before a trial even begins, and the entire process could take several years, particularly in a highly adversarial divorce. Mediators are generally more flexible, and also more abundant, allowing parties to get started more quickly than if they were waiting to go to court.
Further, mediation is more flexible with respect to protocol and accommodating issues like distance. If parties are located far apart geographically, mediation can be conducted remotely, using various communication technologies. For parties who are incapable of communicating effectively, or in situations where there is a concern regarding imbalanced power dynamics or even abusive behaviour, parties can remain separate throughout the process. This helps to ensure each party is able to speak freely without fear or intimidation.
At Boulby Weinberg LLP in Toronto, our divorce lawyers regularly represent clients in private mediation, helping to guide them through the process while ensuring their interests are secured. To arrange a consultation with a reputable and empathetic lawyer at Boulby Weinberg LLP, please complete our confidential online questionnaire, which will provide you with valuable preliminary information tailored to your situation. A representative from our firm will contact you within one business day to discuss your matter further and arrange an initial meeting. To contact our firm without completing the questionnaire, please reach out to us online, or call us at 647-494-0113 ext. 102.