Are There Consequences For Refusing To Mediate?

January 23, 2019
Ron Shulman

Article written by Ron Shulman

For those of you who are recently separated, you may be wondering about mediation, and whether it’s a mandatory part of the legal process leading up divorce.

In Ontario, the answer is “no” – unless you have a duty to mediate as part of an agreement, or else by way of a court order on consent.

In that case, you can face significant court-imposed sanctions for failing to participate, as will be outlined below.

What is Mediation, Anyway?

In the family law sphere, mediation is a process in which a neutral third-party mediator facilitates communication between you and your ex, to assist you in reaching an amicable, mutually-acceptable resolution to some or all of the disputed issues arising from your separation and divorce.

In that context, mediation is never compulsory. That’s because family law litigation is given a unique status in Ontario, and is outside the purview of the Mandatory Mediation Program that applies to other civil and estates disputes in some municipalities.

Why Would I Be Penalized, Then?

Although mediation starts as a voluntary part of your separation and divorce, this does not mean that a duty to mediate cannot be imposed on you later in the process – but only if you and your ex have expressly agreed to it.

For example, if you have made a written separation agreement with your ex, stating that you will both participate in mediation together, then naturally you will each be expected to comply with that part of your agreement, along with all other negotiated terms.

Also, under the Ontario Family Law Act, a judge is entitled to make an order appointing a mediator, but only if you and your ex consent. At that point, you do have an obligation to mediate, and failing to do so can attract court-imposed sanctions as would your breach of any other part of the court order.

What if I Refuse to Comply?

Whether the duty for you and your ex to participate in mediation arises under your separation agreement or through a court order, there can be repercussions – and court-imposed sanctions – if one of you chooses not to comply.

In a recent Ontario case involving a child support battle, the judge ordered the father to pay almost $22,500 for the mother’s court costs, because (among other things) he refused to participate in mediation as he had agreed to do in a separation agreement.

With that said, the duty to participate in mediation does not mean you have a duty to actually reach an agreement. If after giving it an earnest effort, you or your ex are finding it unproductive, you are free to proceed with formal litigation.

What are the Benefits?

The core benefits of the mediation process are significant:

1) Cooperation

  • Mediation helps preserve and promote family relationships, because it fosters communication and understanding, while minimizing the conflict between you and your ex.
  • It can give both of you a sense of being heard, and of being allowed full participation in achieving a mutually-satisfactory outcome.
  • It is usually less costly than litigation.
  • It forces both of you to “come to the bargaining table” with a creative problem-solving mindset, ideally with realistic objectives in mind.
  • It involves active two-sided participation, which is often preferable to having a judge impose a resolution on you. This is especially important if you and your ex have children together, since you are naturally the prime advocates for what is in their best interests.
  • The success of mediation hinges on you both having a cooperative attitude towards getting to a resolution, rather than fostering a “win/lose” mindset.

2) Narrowing the Issues

  • The mediation process can gently push you to settle some of your issues, or at least narrow them. There are no penalties for being unable to reach a mediated settlement.
  • By definition, the process involves identifying the core issues and areas of disagreement between the two of you, and exploring whether you can reach mutually-acceptable resolutions together, without the need to litigate.
  • By itemizing all of your issues, you will each be forced to reflect on their relative priority. This may shine light on those matters that are truly key for both of you, and which deserve your greater mutual focus, whether through mediation, or the regular court process.

3) Child-Centered Resolution

  • If you and your ex have children, mediation is the most child-friendly and beneficial approach to resolving your issues. As parents, you and your ex will have the best vantagepoint on what is in your children’s best interests.
  • A successful and speedy mediation will also minimize your children’s exposure to acrimony and conflict, which is much more prevalent in the traditional family litigation process.
  • Custody battles that are played out in the courtroom (and on the home front) can be very damaging to children. Mediation can minimize that negative impact. For example, it avoids the need for your children to give evidence in court.

4) Longer-Term Benefits

  • Mediation is far less time-consuming than traditional family litigation. The court system can be very slow, and it can literally take years to resolve all your family issues and finalize your divorce – and even then you may have to return to court to clarify or re-open some issues. In contrast, mediation is relatively quick, less costly, more efficient, and often more final.
  • The goal of mediation is for you and your Ex to actually be the ones make the decision about what is best for you, and for any children you have together.
  • If mediation is successful, you and your Ex are likely to be more satisfied with the outcome, so you will both be more likely to stick to the terms of the agreement you reach. This in turn gives you the best chance at avoiding future conflict as well.

5) Flexibility

  • If you embark on mediation, and either or both of you decide it is not working, you can discontinue it at any time and resort back to traditional family litigation.
  • The process itself is more informal and flexible. There is no requirement to adhere to strict court protocols around evidence, documentation, and legal procedure.
  • Mediation avoids the stress and frenzy of having frequent meetings with lawyers, trying to meet document-filing deadlines, and striving to understand confusing and complex litigation processes.
  • The mediation sessions are conducted in a neutral setting, like the mediator’s own office or a conference room. This allows you and your ex to be more relaxed while negotiating.

6) Privacy

  • Mediation is a confidential, non-judgmental process, with an experienced mediator at the helm. He or she will safeguard the details of your case and any settlement, and will sensitively guide the negotiations in a manner that optimizes your chances of reaching an agreement.
  • When successful, the outcome of mediation is a private settlement, which is a confidential agreement, and can be kept out of the public domain. This allows you to keep the intimate details of your separation and divorce from being disclosed to others. This is usually not the case with a formal court ruling, and the resulting court order. Those are public documents and freely available on the internet in Canadian case law repositories.

What’s the Bottom Line?

Even though it’s not mandatory, mediation is almost always a good idea. It is one of the best ways to narrow and resolve your family disputes, and can lead to results more quickly, and more affordably than traditional litigation.