Why I Advocate for Mediation

Not too long ago, a mediator called me to ask if I would be open to a referral from her. She had a matrimonial client who had reached a mediated agreement with a spouse and was looking for a lawyer to help finalize that agreement. “Not very many lawyers will take on work from a mediator,” she stated. I cannot comment on whether or not family law lawyers are reluctant to work with mediators or mediated agreements. However, I do know why I really do appreciate referrals from mediators.

Here is my top ten list of reasons why I think settlement work done by a mediator is time well-spent:

1.       Mediators empower individuals to problem-solve. Even if not all matters are sorted out in mediation, the parties are closer to final resolution having had the experience of deliberating together to try to work out the details of settlement. If parties can talk once, they can usually talk again.

2.       Mediators can get to the root of the disagreement. The litigation process, at the end of the day, can dole out final answers – Who must pay? What amount is owed? What child lives where and with whom? However, it cannot give answer to the deeper concerns that are often felt by both parties – worry for a child; stress about finances; conflicting parenting styles; concerns for the future. Mediation can discuss the sensitive issues that may be at the root of the disagreement.

3.       Mediation respects privacy. Most court proceedings and filings are open to the public. What is filed at the courthouse is searchable and retrievable information. For example, corporate financial statements, tax returns, partnership income, EI, trust statements, disability payments, and other income information must be filed when child support is at issue. Also, opposing affidavits, which can be mutually damaging, are often filed in family law applications. When parties do not want their disagreement to be made public, the mediation room may be preferable private forum.

4.       A stranger is not deciding. When parties come to mediation, they are in charge of their own problems and their own solutions. There is no judge, no stranger, making a decision about the fate of a family. The parties are not obligated to decide on resolution at the mediation table, but they have opportunity to decide a resolution. Being able to decide on a plan of action can be liberating.

5.       Mediations are often “without prejudice.” “Without Prejudice” means that a mediated discussion or agreement cannot be used in court as evidence. Thus, one can come to the mediation table, and propose solutions without fear of the discussion being disclosed to a judge if the mediation is not successful. One comes voluntarily to the mediation table, and one can also walk away from the mediation table.

6.       Mediators are skilled professionals. Litigators and mediators play very different roles. The litigator’s goal is to win. The mediator’s role is to resolve. Sometimes it takes a mediator’s training and experience to break the standoff between clients and their respective lawyers.

7.       Mediators are trained not to overstep their roles. While mediators certainly have a crucial role of resolving issues, mediators often advocate for us lawyers throughout the mediation process. Often, mediated agreements are made “without prejudice” and are only memorandums of understanding (“MOU”) and, therefore, unenforceable. However, lawyers can take the terms of a mediated agreement, advise their client about the feasibility and acceptability of its terms, and then draft out of it a formal and binding legal agreement. Often, mediated agreements need to be tweaked or reworked to a degree based on the reality of a legal situation. Lawyers are trained to root out the legal complications of a MOU, and draft from an MOU a legal agreement. 

8.       Mediation is available now. Our courthouses are full to bursting, and it takes a lot of time to get a matter resolved through court processes. Mediators are available now for resolution work.

9.       Mediators are affordable and often save costs in litigation. A skilled mediator can save individuals money and can decrease stress. In my experience, even clients that are driven to have their day in court become drained by the angst and the high cost of litigation. Even if mediation does not resolve all of the issues, it may resolve some of the issues, and may be the catalyst of final resolution before a trial of the matter.

10.   Mediators are really nice people. I don’t mean this tritely. Not all professionals are trained to be nice. I don’t think lawyers are well-known for their niceness. However, mediators are trained to listen, to affirm, and to care. Problems may resolve simply because parties feel like they have been finally heard.

Should you want to try mediation services, please let us know and we will provide you with some referrals to mediators that our clients have successfully used in the past.

Paula Kinoshita

NOTICE TO READER: The summaries of legal rights and remedies described above are general references to the Alberta laws existing at the date of the publication and may not apply to the reader’s individual circumstances. Also, the laws may change. These legal summaries are not to be relied upon as applicable to your individual circumstances and are subject to a complete review of the facts and applicable laws in every case.