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A Case for Mandatory Mediations in Family Court

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Guest blog by Joel Skapinker.

Although we do not support mandatory mediation in family law, mediator Joel Skapinker asks some hard questions in this thoughtful blog post. What do you think?

It has become the trend in most western countries to provide for voluntary or mandatory modes of alternate dispute resolution (ADR) to resolve disputes leaving for trial only those cases either not suitable for mediation, those cases in which the law is unclear or those cases where the parties are so entrenched in their positions and belief that their position is just that they are willing to engage in uncertain expensive zero sum gain litigation.

In my involvement with family mediations both as counsel and as a mediator in the Family Superior Court in Toronto it’s been my observation that in fact very few cases are disqualified from mediation.  Imbalances in power are easily redressed by have each party represented by counsel and safety concerns can easily be taken care of by placing the parties in separate rooms with separate arrival and departure times.  It is very rare that a strictly legal question arises and that question (e.g. the expiry of a limitation period) can often be dealt with on a summary basis by a judge or arbitrator so the mediation can progress.

The Case Conference, as a first court appearance which often because of scheduling take up to 3 months from the start of the lawsuit to, was designed to help the parties settle early on or if they are not able to settle then to narrow their issues and ensure full financial disclosure had been made.  By having an objective view from the bench of the likely outcome of the case the theory was that litigants could weigh up what terms should be incorporated into an Offer to Settle.

It is my view that these ends can be achieved in mediation far more cheaply and expeditiously my requiring all litigants in family court to attend at least one mediation session before being permitted to proceed with litigation (unless of course there is a peace bond in effect or an emergency particularly involving children).  The cost incurred by the province in funding such mediation will save far more in judicial and court time.  If the mediator is also a lawyer the parties may seek and have an evaluative mediation which itself may shorten the litigation if not end it.

The courts require parties to file a signed Mandatory Information Program form showing they have attended such program before they can take the next step in litigation.  I submit that in addition to a signed MIP form, the parties should be required to file a Mandatory Mediation Form signed by an accredited mediator who would either confirm that the case was not appropriate for mediation or that mediation was tried and failed.  Parties who did not produce such a form should not be permitted to proceed with the litigation unless a court rules otherwise.

The post A Case for Mandatory Mediations in Family Court appeared first on Riverdale Mediation.


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