Mediation

Mediator's style has to work for both parties: Jordan

By Judy van Rhijn, AdvocateDaily.com Contributor

In this second instalment of a three-part series on family law mediation, Toronto family lawyer and mediator Kelly Jordan discusses what to consider when selecting a mediator.

Choosing the right mediator can be critical to reaching a resolution, Toronto family lawyer and mediator Kelly Jordan tells AdvocateDaily.com.

“The client has to respect the mediator, so they have to be involved in that decision,” says Jordan, principal of Kelly Jordan Family Law.

“Clients and lawyers will often have the same concerns,” she says, “but it might be harder for the client to evaluate the mediator.”

Jordan’s advice is to focus on the person's qualifications.

“The first thing you have to consider when you're looking for a mediator is their qualifications to deal with the issues that you have,” she says. “You want to make sure they are an accredited mediator.”

Jordan stresses that not all mediators are accredited through bodies such as the Ontario Association for Family Mediation.

“That doesn't mean they're not experienced, but checking accreditation is the first step,” she says. “With an already-accredited family mediator, you know they've had significant training in mediation and intimate-partner violence, and that they've interned for at least 100 hours.”

Jordan says some of the most senior mediators have either been grandfathered into accreditation because they've been mediating for so long, or they mediate without accreditation.

“If they're not accredited, but they are experienced, you'd want to look at their resumé to check out their qualifications,” she advises. “For instance, if the issue is parenting, you’d want to know if they’re a social worker or a lawyer with a social work degree or a mental health background.”

Whether accredited or not, Jordan recommends checking the proposed mediator’s references.

“If you haven't used the person before, ask for names of lawyers they have conducted mediations with and check with them,” she says.

Every dispute has different issues, some general and some more specific, says Jordan.

“If there are only parenting concerns, you might choose a mediator with a skill with those issues, such as a social worker,” she says. “If there are only financial challenges, you're going to want to make sure the person can understand complex transactions. If the issues are a mix of both, you may have to either find two mediators or someone who understands both financial and parenting matters.”

Jordan says you don't have to be a family lawyer to mediate family law issues.

“You see all sorts of third-party professionals with different backgrounds who feel they can bring some skills to mediation.”

In fact, she says there's additional mediation training for non-lawyers.

“If you're choosing someone who is not a lawyer, being accredited is a real asset because then you know they’ve done family law training as well as learned about the process of mediation.”

The next thing Jordan considers is the style of mediation.

“Style is very important,” she says. “It’s something that's hard to know if you haven't worked with that mediator before. It's not something that's going to show up on a resumé, so that's why it's important to check those references.”

Jordan distinguishes between the evaluative style and more interest-based negotiators.

“The evaluative mediator is a lawyer who will bring more legal information to the table — who might even express an opinion,” she says. “In some instances, we'll ask the mediator, ‘What do you think a court would do on that issue?’ This doesn't mean the mediator is a decision-maker.”

Jordan recommends the evaluative style if the client or the other party would benefit from someone who can offer legal information that will help persuade one client to move from an entrenched position.

However, she says, the mediation isn’t bound by what a court would do.

“You can be more creative, imaginative and interest-based. You have to decide what you really need and what will work in the circumstances for you and the other side,” says Jordan.

“That's why mediation is such a great way to resolve conflicts. You may know that if you go to court, you will have to pay a certain amount of spousal support, but through mediation, you could agree to a lesser or greater amount in view of some other considerations.”

She warns that the mediator's style has to work for both parties.

“You may want a mediator who can be evaluative and stern with one party, and more personable and engaging with the other. Great mediators can do that.”

Stay tuned for part three, where Jordan will discuss practical advice to ensure children’s best interests are kept at the forefront.

For part one, where Jordan discussed what to expect, click here.

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