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Family, Mediation

Mediation can help couples narrow disputed issues

When breaking up gets too hard to do in court, divorcing couples are increasingly taking a time out from litigation to settle some or all of their issues in mediation, says Oakville family lawyer, mediator and arbitrator Cathryn Paul.

“I’m seeing more of these matters come through where people are feeling stuck in the litigation process and looking for an alternative,” says Paul, principal of Paul Family Law Professional Corporation.

“Sometimes they come in as a sidestep from litigation — maybe between court dates — to see if they can narrow certain issues. It might even be to resolve the whole matter. Basically, they’re saying this process at court is not fantastic and we want to resolve it a different way,” she says.

Couples are often under the mistaken impression their choice is an either/or proposition: litigation or mediation, Paul tells AdvocateDaily.com. “But there can be overlap. The fact you went to court doesn’t mean you have to resolve all the issues in that forum.”

After 15 years in family law — the last seven exclusively in mediation and arbitration — Paul has seen an increasing number of clients who started out on the litigation path, found the delays and reality testing that occurs in court too painful, and decided to give mediation a go.

She’s also received referrals from family judges and had clients who started out in mediation but opted for court when they couldn’t find resolutions, only to return to mediation.

“Sometimes it’s a matter of timing, getting people when they’re ready to make decisions,” Paul says. “At first they may come to me when emotions are really high — it’s either a recent separation or there’s been infidelity — and it can be a challenge to find a resolution because there’s so much distrust. They go to court and find the process long and arduous.

"Often, parties lose steam and their willingness to battle, and come back into mediation.”

Choosing mediation enables them to take control of the outcome, she says.

“Something I often say to people is, ‘Right now you can shape what your kids’ memories will be of their parents’ separation. You don’t want them to be 25 in their first relationship with many scars of what love looks like,’” Paul says.

While mediation has been an alternative in family law matters for decades, in the past five years, she’s seen couples choosing it as their first option to resolve differences.

“It’s not just for separating couples who still get along well,” Paul says. “We can be really creative in mediation in terms of structure. The parties can be in different rooms, alone or with their lawyers. I can go back and forth between rooms or between the lawyers. Even in higher-conflict situations, we can manage that.”

If mediators can help couples buy into solutions there’s a much better chance that separation agreements will hold up in the long run, she says.

“If the parties don’t like judge’s order, they’ll find a way to get out of it. We can get much more detailed in mediation than judges have time to do with their full dockets. For example, we often help couples craft parenting plans that work well for all parties,” Paul says.

There are many issues that can be better dealt with in mediation, such as who will pay for the kids’ haircuts, what time the handover will happen, or what camps and child-care providers the children will go to, she says.

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