mediation explained family law toronto

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Mediation Explained

Mediation is about two parties in conflict meeting with a neutral facilitator who will help the two parties come to an agreement between themselves. Mediation can become confusing though when one considers there are at least three types of mediation, and that all three types can be provided open or closed.

Open versus closed mediation refers to whether the mediator can write a report, release records, or be called to court. In open mediation then, the mediator can go to court as well as write reports and have their records called for. The benefit of open mediation is that it allows the mediator to inform the court of their impressions of the parties formed during the mediation process, as well as offer any insights or opinions as to solutions. The drawback of open mediation is that some parties may be reluctant to discuss their feelings or views on matters knowing that their views and opinions, and even behaviour during the process, may be used against them in court.

In closed mediation, the mediator is only allowed to report on any agreements the parties may have achieved in the mediation process in the form of a Memorandum of Understanding.  Thus, while the mediator is restricted from being involved otherwise in a court process, the view is that in closed mediation, people are more able to speak their minds. The belief is that this results in better outcomes.

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The three types of mediation are transformative, evaluative and facilitative (interest-based).

Transformative mediation seeks to help people better understand each other and resolve underlying issues that interfere with reaching consensus regarding matters of dispute. This approach is somewhat therapeutic.

Evaluative mediation has the mediator weigh the pros and cons of each party’s point of view and offer an opinion on the matter of conflict. It is hoped that the opinion of the mediator can help tip the balance towards a settlement. This is similar to what people may experience in a “settlement conference” at court.

In facilitative or interest-based mediation, the mediator helps the parties better appreciate respective concerns and what may lay beneath what each is seeking to achieve. With a better understanding of each other’s interests, it may be possible to find solutions where both may be satisfied.

The most common approach to mediation is facilitative, although it is common for mediators to use some strategies from all three types and most commonly, in a closed context – no court.

The main benefit of mediation is that the parties maintain control of the outcome. It is well to remember, you don’t have to love your agreement, only be able to live with it. If somebody else decides your fate, you may not appreciate the outcome at all.

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