At its core, mediation—like litigation—is a method of dispute resolution, but that’s where the similarities end. Mediation tends to lead to faster and less expensive resolutions compared to going to court.

Compared with the flexible and collaborative nature of mediation, litigation is a very blunt tool for family law dispute resolution. The parties in mediation are given the power to control their own process and craft nuanced settlements that take their unique circumstances into account, leaving everyone involved feeling more invested in the outcome.

While a judge ultimately favours one side or the other in their ruling, a mediator remains entirely neutral throughout, transferring the decision-making power to the parties themselves. Rather than taking sides or giving advice, the mediator helps former couples craft solutions that will work for everyone involved, and the mutually agreeable settlements that emerge are generally more durable and longer lasting as a result.

Part of the beauty of mediation is that the couples involved get to design the process that suits them, which means that no two mediations look exactly the same.

Mediators can handle all the same disputes that a judge would rule on in court. That means any family law issue can be dealt with at mediation, including matters related to parenting time, decision-making responsibility, finances, division of property, child support and spousal support.

But family mediation is not confined entirely to separations; partners whose relationships are still intact may also use a mediator to help them through the issues they encounter while drafting domestic contracts, such as cohabitation agreements or marriage contracts, often referred to as “prenups.”

Thanks to the adaptability of the mediation process, parties are able to — with the help of their mediator — tailor proceedings according to their precise needs. For example, couples dividing complex assets may wish to incorporate outside expertise from tax professionals, financial advisors, business valuators or other specialists, and can select a mediator with experience dealing with complicated financial issues.

Selecting the correct mediator is one of the most important decisions you and your former partner have to make after opting for family mediation. 

Both parties must be comfortable with the selection, and there is no shortage of options in a province like Ontario, where the profession is relatively new and unregulated. That means anyone can hold themselves out as a mediator, regardless of their experience or qualifications.

Still, Ontario-based mediators who provide court-connected services are required to meet minimums standards, and Darlene Rites is one of a select few mediators who have been accredited by the Ontario Association of Family Mediation, a designation available only to those who have completed formal family mediation training and supervised practical experience in the field. Darlene was formally on the roster of the Toronto Family Mediation Services (formally Mediate393), which provides government-funded family mediation services in Toronto’s Superior Court of Justice and two Ontario Courts of Justice.

Mediators come with a variety of styles and educational backgrounds, which means that your choice could be a lawyer with a background in family law, a social worker or a psychologist with mediation experience. One of the advantages of hiring a mediator who is also a family lawyer is that they can arm you with relevant legal information as well as a perspective on how similar cases have played out in court. In cases involving complex financial issues, a mediator’s knowledge of the latest legal developments and precedents is crucial.

It’s never too late to mediate. The time between launching a family court application and reaching trial routinely drags on for years, and there are plenty of off-ramps built into the litigation process that enable parties to try out other methods of dispute resolution, such as mediation. 

There is increasing acknowledgement in the justice system that the adversarial nature of litigation can have a damaging impact on families because of the way it encourages conflict between parties. In fact, recent amendments to Canada’s federal Divorce Act spelled out a family lawyer’s duty to encourage clients to settle their issues in appropriate cases using non-court alternatives, which include mediation.

Couples can start mediation at any point in the litigation process, and it’s not unusual for both to run in parallel. Even when the parties are only able to reach a partial agreement ahead of trial, taking one or two issues off the table can significantly reduce the time and expense associated with settling the rest of them in court.

Lawyers, clients and mediators must tread extremely carefully in any situation where there is evidence of controlling behaviour, domestic violence or a significant power imbalance between the parties, whether in the past or on an ongoing basis. In some situations, a court order may be required to secure a resolution, but there is no reason why these cases should automatically be precluded from mediation, as long as appropriate safeguards are put in place following a thorough screening process. 

One of the key advantages of mediation over litigation is the flexibility it affords parties to tailor the process to fit the precise needs and desires of those involved. For example, mediations involving high-conflict or abusive relationships could proceed online to reduce the opportunity for interactions. If the mediation is occurring in person, it can still be structured so that parties arrive separately and are never in the same room together.

One style, known as “shuttle mediation,” proceeds without any joint sessions, putting the onus on the mediator to shuttle between locations to facilitate discussions between parties who will not be required to communicate directly with one another. Whatever the issues, family mediation has emerged as one of the most popular alternatives to court, enabling couples to efficiently reach a settlement with as little financial and emotional disruption as possible.