What Is The Difference Between Mediation And Litigation?

Family law covers divorces, child custody and visitation, alimony or child support, and a variety of other disputes among family members. But seeking legal assistance for these issues does not have to include going to court for resolution. More and more families are opting for mediation instead of litigation.

What is the difference between mediation and litigation? The big difference is how the resolution of a family dispute is decided. In mediation, a dispute is resolved by negotiation, which is based on the needs and interests of the parties involved. In litigation, the resolution is based on legalities and laws.

In both mediation and litigation, a third-party is involved in helping to resolve the issues; however, in mediation, the third-party is a facilitator who acts as a “go-between” to help parties negotiate a resolution. In litigation, the third-party makes the final decisions. Mediation processes are also informal and flexible while litigation is more formal and must follow rules and specific procedures. Litigation is also public, while mediation can be private.

What are the benefits of mediation over litigation? In litigation, the decision-making is often based on exertion of rights ending in a win/lose battle. Negative emotions are more common in litigation than mediation. A mediation facilitator is a neutral party that guides participants in working out solutions that are agreeable by both parties. This makes the whole process much less stressful and encourages the parties to get along.

In divorce cases, where children or asset division is involved, cases that otherwise may become antagonistic or quarrelsome, can often be transposed into quiet, friendly negotiations when using family law mediation. Mediation processes can be completed quickly or take months, depending on the situation, but the timeline is flexible. A mediation process may include a team of different professionals to address different areas of concern, such as financial, psychological and legal.

While mediation does not require an attorney, before signing any mediation agreements, you will want to have an attorney review them, so it often works out best to use a family law attorney from the beginning who provides mediation services. They can provide legal advice and answer questions about the law. They also have the resources to recommend or bring in other professional facilitators as needed.

Source: British Columbia Ministry of Justice, “Family Mediation,” accessed April 22, 2015

What If You Want Mediation And Your Spouse Doesn’t?

What do you do when you really want mediation and your family member — or soon to be ex-spouse — doesn’t?

If your case has already been started in Supreme Court, and you can’t convince your opposing family member of the benefits — such as solving your issues without appearing in court — you can “require” that he or she attends mediation services. You can have him or her served a Notice to Mediate. Time is important, though. The notice must be served between the 90-day period after the Response is filed and 90 days prior to the date set for trial.

Your opposition is now obligated to attend mediation, except in the following situations:

  • A family law protection order or a peace bond exists by one of you against the other
  • A mediator does not believe that mediation would be an appropriate or productive tool for the two of you and advises the court of such
  • You’ve had a previous mediation regarding the issues in dispute
  • The court exempts one party from having to participate because of impracticality or unfairness
  • You both sign an agreement, confirmed by the mediator, stating that one party does not have to participate in mediation

There is still no guarantee that your opposition will comply; however, if they do not, the court can order them to pay your court or other costs for applying for the mediation.

Mediation, however, is a good tool for most people to use in resolving family disputes. More and more couples and family members are turning to this type of resolution, as it is more friendly, less destructive and less expensive than court. The next step is to find a good mediator.

Attorneys, who provide this service, usually have good, qualified mediators in their firm, and resources to other professionals, such as financial counselors, mental counselors and any other qualified individuals deemed necessary.

What Should You Expect When You Choose Family Mediation?

What is family mediation? When a family is experiencing a dispute, a mediator, who is a non-biased party, helps the parties come up with a resolution. The mediator does not take sides, but listens to the concerns of each party and helps them come to a resolution or settlement — without going to court.

What happens in a mediation session?

In a mediation session, each party is able to express his or her concerns and ideas. A mediator runs the session, ensuring that everyone has a right to equal time and freedom of his or her opinion. Parties involved in the session can meet with a mediator together or in separate rooms. The goal is to come up with a solution that all parties can agree on.

How long do the sessions take?

Session times may vary. They may last up to three hours.

What happens after a mediation session?

If a settlement or agreement is decided on, it may be written up and filed with the courts by the attorney. If an agreement was not forthcoming, another session may be scheduled.

What types of family issues are candidates for mediation?

Divorce and/or separation, asset division, custody and parenting plans, child support or alimony — these are all family issues that may benefit from family mediation.

What are the benefits of family mediation?

Mediation is much friendlier than fighting out family issues in court. In court, a judge makes the final decision on the case. In mediation, the parties involved have an opportunity to have their issues and concerns not only heard, but considered. Through the mediator, the parties come up with a final solution, which each must agree on. There is less negativity and stress — and usually a kinder outcome.

How do I know what type of mediator I need?

A mediation attorney can usually provide advice on what professional resources are needed depending on the type of dispute. For instance, in dividing a family-owned business, a financial appraiser may be needed to determine the worth of the business.

Source: Legal Aid Ontario, “Family mediation and settlement conferences,” accessed May 14, 2015

Divorce Brings With it Many Decisions to be Made

If you are planning on ending your marriage, have you thought about how this is going to modify and rearrange your living arrangements? There are a lot of decisions you and your spouse are going to have to make, such as whom the children are going to live with, child visitation, child support, property division, spousal support — just to name a few.

You have a couple of options to help you with these decisions. One option, of course, is to go to court and let the judge make the decisions for you. Just keep in mind that when the judge makes the decisions for you, they may not be in your favour. While judges try to be impartial and fair, this type of decision-making often turns out to be more favourable to one party than the other, which breeds dissent between two parents, who may have otherwise ended their marriage in an amiable fashion.

Your other option is using collaborative law. In this case, you and your spouse can work together through a mediator to make these important decisions. You’ve been making decisions together throughout your marriage — and you are probably the best people to make them regarding your break up. A mediator can set up other professionals that may be needed, such as a tax or financial professional, a counsellor, or any other resources that will make the process easier or lessen the complexities.

When the important decisions, such as child care, visitation and child support have been made, your attorney can help you draw up an agreement and file it with the court. The agreement does not have to be filed with the court, but by doing so, the court can enforce the agreement if it ever becomes necessary. It can be filed at any time, but a court cannot enforce it until it is filed in the court system.

Qualifications of an Arbitrator

Arbitration is not the same as mediation; however, it can be used along with mediation or other collaborative processes. In arbitration, you agree to allow a family law arbitrator to make a decision on your family issue, much the same as a judge would.

In arbitration, all parties must agree to the use of an arbitrator and the rules that will be applied during the arbitration before the process begins. The rules cannot be changed after the process begins.

What are the requirements of an arbitrator?

Beginning Jan. 1, 2014, certain training and qualification requirements for family law arbitrators were enacted by the Family Law Act. To practice arbitration in Canada, an arbitrator must be an attorney, psychologist or social worker. In addition, they must be trained in arbitration, decision-making, skills development, family law and family violence. They must also have, at a minimum, 10 years’ experience working in a family-related field.

An arbitrator who is an attorney can perform arbitration on any and all types of family law issues, from divorce and child-related issues to property division and alimony cases. A psychologist or social worker, who is not an attorney, may only perform arbitration on child issues and child support cases.

Resolving issues outside of the courtroom using an arbitrator is called an alternative dispute resolution. Through mediation and negotiation, and an impartial arbitrator, the focus is less on who wins or loses, and more on finding an agreeable solution to a family issue. This path helps families to work together instead of creating a larger disparity between those involved.

Source: British Columbia: Family Justice Information and Support, “Arbitrators,” accessed May 1, 2015

Is an Arbitration Agreement Binding?

Arbitration is an option that many people use to resolve a dispute without having to go to court. The benefits of arbitration are not just the avoidance of going to court, but it can also be more effective in coming to a civil agreement without strife and other complexities.

Are arbitration agreements binding?

The short answer is “Yes.” The purpose of arbitration is to have a resolution for an issue, the same as if you went to court. Whether it is a divorce, a child custody issue, a family property dispute or any other issue, if the final agreement is not binding, you may have wasted your time. In most instances, the agreements that come out of arbitration are not only binding, but cannot be appealed. An agreement is usually signed at the beginning of the arbitration process, specifying these rules and regulations.

Is arbitration private or public?

Arbitration is private; that is the opposite of most court cases, which are public. If the final arbitration agreement is filed with the court and needs to be enforced at some point, it may become public then. Arbitration agreements are enforceable by the court; however, they must be filed with the court before they can be enforced.

Do I need an attorney for arbitration?

You do not have to have an attorney for arbitration, but it is recommended. A mediation or arbitration process may require more than one type of professional to mediate or provide information regarding a part of the proceedings. An attorney can help provide evidence and resources, as well as oversee the process itself.

Once arbitration begins, can we change our minds and decide to settle?

Absolutely. The whole purpose of arbitration is to come to a settlement agreement that works for both parties involved. If the parties decide to settle on an agreement, the process can be completed.

Source: Alberta Arbitration & Mediation Society, “What is Arbitration?,” accessed May 28, 2015