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Family, Mediation

Identifying an unsuitable case for mediation

It’s important to be able to recognize when a case is unsuitable for mediation, Toronto family lawyer Herschel Fogelman tells

Despite the cost- and time-saving potential, mediation isn’t the best option for every case, says Fogelman, founder and principal of Fogelman Law, and parties who blindly enter into the process may end up wasting more time than necessary.

“This is one of the reasons why I don’t think mandatory mediation is an effective idea,” he says. “Mediation is well-suited to people who want it, but not always to those who don’t.”

A recent survey of practitioners by the Canadian Forum on Civil Justice found that 89 per cent of Ontario lawyer respondents said they used mediation to resolve disputes over matters including custody and division of property. 

And while the survey’s authors reported that mediation typically costs half as much as litigation, lawyers noted that results varied drastically depending on the circumstances of a case.  

For example, respondents reported that the average low-conflict case reached settlement through mediation in about five months at a cost of roughly $6,000. But high-conflict cases took almost three times as long, with an average cost of $30,000.

According to Fogelman, cases where mediation may be an unsuitable option fall into at least one of four categories:

  • Ugly conflicts: “If a case has a tremendous amount of conflict and the parties are just going to use the mediation as another ring in which to fight, then you’re not going to get anywhere,” Fogelman says.
  • Binary cases: When a case has an obvious winner and loser, he says mediators are hampered by the lack of flexibility to craft a solution that both sides can accept. “Mobility cases spring to mind because the person will either be allowed to move with the child or they won’t. It doesn’t mean you can’t find a creative solution, but mediated settlements are harder to achieve.” 
  • Multiple parties: When third parties get involved in family law cases, including parents or private lenders where mortgages or property conveyances are in dispute, it adds a layer of complexity, says Fogelman. “Mediation still works, but the main problem is getting them all in the same room. Unless they’re all present, it’s hard to make a deal.” 
  • Domestic violence: “Many cases involve allegations, but when spousal violence has been objectively determined, it’s probably not a suitable case for mediation,” Fogelman says.


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