We take pride in being skilled litigators, negotiators, arbitrators, mediators, and advocates. In this article, we will help you understand the benefits and drawbacks of mediation in family law disputes.
Mediation is a form of alternative dispute resolution where the mediator is an impartial facilitator and works to assist parties in a negotiation aimed at resolving the outstanding issues between them. Parties work with the mediator to determine points of agreement and disagreement, to identify their interests, to explore alternative solutions and to consider compromises or accommodations.
Some of the benefits of mediation are the following:
- It is cost-effective;
- It may take significantly less time than going through the court process;
- It is based on voluntary full disclosure;
- It allows for greater privacy because mediation does not form part of the public record; and
- It can provide both parties satisfaction as they are in control of their decisions and a third party is not making a decision for them.
There are also drawbacks to mediation. The mediator has no authority to impose a settlement on the parties. In addition, the discussions the parties have in mediation are without prejudice, which means that if the parties are unable to resolve outstanding issues, the discussions and any offers that take place in the mediation cannot be used in court.
In the family law context, a mediator can assist parties at any stage. For example, parties can go to mediation to discuss the terms of a prenuptial or cohabitation agreement and both be involved in the process. Parties can also go to mediation to discuss all issues related to their separation or parenting. Some parties attend mediation after they already have a formalized agreement or court order to discuss issues that have arisen in the context of their separation or issues pertaining to their children.
In Saskatchewan, s. 7-4 of The King's Bench Act, SS 2023, c 28 [KBA] obligates parties to attend alternative dispute resolution before they may go to Court. Mediation is recognized as one of the mandatory alternative dispute resolution options available.
There are exemptions for the alternative dispute resolution requirement under s. 7-4 of the KBA, including for situations where there is a restraining order between the parties, a child of one of the parties has been kidnapped or abducted by the other party, there is a history of interpersonal violence between the parties, one party provides proof of attempts to engage the other party in family dispute resolution, or other extraordinary circumstances based on a judge's discretion.
Although mediation may not work for every situation or for every person, it is certainly worth considering as an option for resolving family law disputes, or as a form of dispute resolution under s. 7-4 of the KBA. At McDougall Gauley LLP, James Morrison in the Saskatoon office and David Couture and Patricia Miller in the Regina office, are trained family law mediators recognized by section 7-4 of the KBA and may be able to assist you.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
