Family, Mediation

Children first: why mediation trumps litigation

By Linda Barnard, Contributor

Mediation can often be a better and cheaper solution than court, allowing couples to achieve a more harmonious split, says Toronto family lawyer and mediator Patrick J. Aulis.

It may also shield children from lasting emotional trauma resulting from lengthy or contentious proceedings, Aulis tells, adding that even in a traditional court scenario, the parties are encouraged to reach a compromise.

But mediation isn’t always the most appropriate way to solve a family law case, says Aulis, founder of Aulis Law Firm Professional Corporation and North York Mediation.

Initial screening can expose power imbalances, concerns around client safety and determine the emotional ability and willingness of both parties to participate.

If it’s a good fit, he says mediation can help couples work through conflicts from a perspective of having common goals, setting a “foundation for restoring a pattern of co-operation that’s going to be needed in the future.”

“Many practitioners, myself included, are of the opinion that the court system is not really a good way to deal with family law breakdowns,” Aulis says.

That’s why he recently expanded his family law practice to include alternative approaches to conflict resolution.

Traditional court litigation is based on positional bargaining, where each party strives to get what they want. It’s a setting where “we’re not encouraged to make compromises,” Aulis explains. “We are competing in terms of resources and experts and trying to get a judge to give us what we want. It’s not necessarily an all-or-nothing proposition, but that’s how it’s positioned.”

Instead, he prefers the approach of interest-based negotiations central to mediation.

While “there is no easy breakup of a family,” mediation takes the long-term commitments that survive the separation into consideration. As Aulis puts it, the parties are “connected in life,” even if the marriage doesn’t continue.

“Really, at the heart of it, you’re trying to get the parties to express what their interests are,” says Aulis, adding there may be more alignment than they realize once they start to talk. Common goals emerge, such as making sure the kids are okay and that housing and lifestyle needs are met.

“It becomes a collaborative effort to try to make things happen.”

A court case and lengthy preparation can be expensive and emotionally upsetting for parents and children, he points out. While mediation can also be intense, it opens the door to “a certain catharsis through stating their feelings,” leading to a settlement both spouses feel they’re invested in reaching.

For example, parents in mediation can work out custody solutions that change over time to respond to a child’s needs, a more flexible approach than court-mandated shared custody, Aulis says.

Mediation can also benefit the children. Aulis points to recent U.S. research showing that children of separating parents can face higher rates of illness and, in the case of younger kids, they may have trouble forming attachments later in life.

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