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Family, Mediation

Five signs your divorce is best suited to mediation

Some family law disputes are so contentious that they need to be resolved using the litigation process, but many others are better suited to mediation, Toronto family lawyer and mediator Patrick Aulis tells AdvocateDaily.com.

“It’s definitely a growing area of practice and many lawyers are looking to it. I would say there’s an increased awareness within the system that mediation is a good way to deal with many of these cases,” says Aulis, founder of Aulis Law Firm Professional Corporation.

He outlines five signs that a separation or divorce is a better fit with mediation than the adversarial court process.

1. “There is an ability to co-operate, communicate and negotiate,” he says. “Without that ability, mediation isn’t going to work, but if it exists, then it’s good to capitalize on that.”

2. “There’s a willingness to maintain a good relationship with the other party, rather than risk destroying it further in an adversarial court process,” Aulis says, calling it a corollary to No. 1.

Maintaining a good relationship is important in a family law case, unlike in another type of litigation that involves strangers or a business deal, because if children are involved, the parties will be interacting with each other for many years, he says. But even if there are no children, “there can still be a need to co-operate as issues arise.

3. “You believe that there are issues where either you’re on the same page as the other party or you can come to a resolution with the existence of a third party without the need to argue,” he says.

“Especially if you have common interests with respect to the children, such as how they should be parented, rather than taking strong adversarial positions in a court context, it may be an opportunity to sit down with a third-party facilitator and explore those things in an off-the-record settlement-oriented kind of avenue, and set aside those things that really aren’t controversial that you agree on.”

Aside from children, he says, another example is one party’s desire to keep their medical benefits under the other party’s workplace plan.

“That’s something they can collaborate on and work with. That can be used as part of the discussion on, say, spousal support. So there may very well be ongoing issues between the parties that will require that kind of co-operation.”

4. “You have a desire to keep your case private, which is easy to achieve in a mediation,” Aulis says.

When the parties enter into a contract with a third-party mediator, “that’s a confidential relationship and any documents remain private. Unless an agreement gets filed with the court for enforcement, they don’t exist in the public realm, as opposed to a court case, where you are filing your documents in a public forum. Other people can get access to your documents,” he says.

It’s also important to note that mediation takes place in a private venue, as opposed to a public courtroom when a matter is litigated, “which many people find very frightening,” Aulis says.

5. “Mediation pulls these cases out of the main court system, which means a case can be resolved much more quickly than with litigation,” he says. “It’s really a question of the availability of the two parties and the mediator, so it can be faster and more streamlined, and that also cuts the cost.”

Aulis says while it’s possible for mediation costs to soar if senior lawyers are hired or a veteran mediator is retained and the hearing is lengthy, generally, that’s not the case. A mediation “tends to be considerably less expensive and much faster, and you have more control over the scheduling of matters than you would in court, where you’re kind of at the mercy of the trial scheduling office to find you a slot that everybody can agree with.”

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