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Mediation a great option for appropriate cases

Mediation is an excellent alternative to litigation, as long as the case is appropriate, Toronto family lawyer Rachel Healey tells AdvocateDaily.com.

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.  

The popularity of this particular mode of alternative dispute resolution among her family law colleagues comes as no surprise to Healey, a lawyer with Stanchieri Family Law.

“I encourage clients to take the mediation route whenever possible,” she says. “It’s a much faster process compared with litigation, especially in family law, where it can take various steps and a great deal of time to get to a judge who makes a decision in the case.

“With mediation, you can frequently get resolution on some or all of the issues within half a day of getting in front of the mediator,” Healey adds.    

As well as saving on time, she says the process can prove cheaper and more satisfying for all parties, particularly when children are involved.

“There needs to be an ongoing relationship where parents learn to speak with each other and make decisions together about the children, and it works much better if they’re able to construct their own resolution, and affect their own change in their families,” Healey says. “They know best how to provide for families.”

The survey, conducted in partnership with Canadian Research Institute for the Law and the Family, canvassed 160 family lawyers from British Columbia, Alberta, Ontario and Nova Scotia on the use of litigation, mediation, collaboration and arbitration in their practice. According to the results, Ontario lawyers were the most likely to utilize mediation, with just 11 per cent of respondents in this province failing to report its use.

The survey’s authors reported that mediation typically costs half as much as litigation and that the parties tend to be more satisfied with the results of mediation compared with litigation.

Still, Healey cautions it won’t work in every matter.

“There are still cases that need to be litigated,” she says. “Sometimes, mediation can be manipulated by one party in order to drive up costs. It also may not be beneficial in relationships where there is a major power imbalance.”

Based on lawyers’ responses, the report found the average low-conflict case takes less than five months to resolve via mediation, while high-conflict ones take closer to 14 months. Litigation, by comparison, reaches a resolution in around 11 months for low-conflict matters, while high-conflict cases take nearly 23 months.

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