Is Family Mediation Binding?

pexels-fauxels-3184299


When separating, many spouses and parents want to find easier, less destructive and less expensive alternatives to Family Court.  For most people, those options are better.  In addition, the 2021 changes to the Divorce Act require separating spouses to consider alternatives to Court.  Many people consideration family mediation to resolve their differences after separation. But, having heard that mediation is a voluntary process, they also worry that their ex will just ignore the result at mediation.  They need to know “Is Family Mediation Binding?”  This page will explain how separated spouses can use Alternative Dispute Resolution to get a lasting resolution without going to court. 

 

When someone decides to separate from their partner, it is because they want to have less to do with then, not more.  The point is to sort out all the necessary issues, such as parent, support and property division and move on – not to keep discussing those things endlessly.  So, what is needed a permanent resolution.  While a family court judge’s decision is often the final say on matters, that can be a long nasty, expensive process.  More importantly, family court  can also wrong choice for many people to get what they want in separation or divorce.  Mediation, and other ADR options can often lead to better results more quickly, at less cost and with much less fighting.


But, over and over again, people say, “Mediation sounds great, but is it binding?” because they are worried that their ex will just ignore any result he or she does not like.  To answer whether mediation will be binding, it is necessary to explain exactly what mediation is.

 



Mediation is a voluntary process, meaning both separating spies have to agree both to go to mediation and on who the mediator will be.  At mediation, parties meet with a mediator to try to come to a settlement of some or all of the issues arising from heir separation.  That meeting can be virtual – over Zoom, or phone or otherwise.   Sometimes, the separated spouses don’t actually see each other, as the meet with the mediator separately, which can be more appropriate in circumstances where having the parties together will just results in fight, or Owen spouse trying to use threats or other forms of power over the other spouse to force a certain result.  One of the mediator’s responsibilities is to ensure that one spouse does not use coercive means to get a particular result.




The idea behind mediation, and what draws most people to it, is that it is a way for the parties to reach a settlement  that they have created, rather than having one imposed upon them.   In this way, the parties remain in control, and try to come up with the solution that is best for everyone - unlike in Court where a judge, who may not understand the family, or the situation, imposes terms that neither party likes.


The role of the mediator is very different form the role of a judge.   The mediator’s job is to facilitate the discussion, perhaps suggest ideas, and assist the parties in negotiating a deal.  While the mediator can suggest ways to settle matters,  the mediator does NOT impose a settlement.  The mediators comments and suggestions are NOT binding.  The parties are always free to say “no" to what the mediator proposes. So, if the settlement that everyone is discussing at mediation is worse for one of the parties than that party is certain to get in Court, than that party can walk away.  In fact, a party can walk away from mediation for any reasons before the parties have reached an agreement.


The goal at mediations is for the parties to reach an agreement that contains terms that they all agree on.  While what a mediator suggests is NOT binding on the parties, the goal of the mediation is for the parties to sign an agreement at the end and that agreement WILL be binding.


Ontario Family Law Podcast

62 - Is Family Mediation Binding?

60 - Should You Take Your Ex to Family Court?

42 - How to Get a Legal Separation in Ontario

31 - How Lawyers Help at Family Mediation

There are rules to follow to have a binding separation agreement.   To summarize, a binding separation agreement must be in writing, it must be signed by the parties and those signatures must be witnessed.  In addition, for the Family Court to hold the parties to the terms of the agreement, both parties must have provided the necessary financial disclosure, they must both have had independent legal advice on the agreement, the agreement must not violate any of the laws of contract and must be consistent with the guiding principals of the family law statutes.  So, if the parties sign an agreement that fulfills all those requirements at mediation, then they have a binding agreement.  In fact, separation agreements can be filed with the Family Court so that the Court can enforce it like a Court Order.

Apple Podcast
Listen to the Ontario Family Law Podcast on Spotify

One of the reasons that people take lawyers with them to family mediation is so that the can make sure they have a binding agreement before they leave the mediation.  Lawyers can make sure that the necessary disclosure is exchanged before, they can provide independent legal advice during the mediation, and they can make sure that agreement does not violate any laws that would result in a court invalidating the agreement.  Parties can then sign the agreement at mediation and that agreement will then be binding.  If the lawyers are not there to review their terms and to provide independent legal advice to their clients, then the mediator may crate a "Memorandum of Understanding" that sets out the agreement between the parties.  But until the parties meet with their lawyers to review the terms  and sign an actual agreement, that memorandum of understanding is NOT binding.  So, party can still “walk away” from the deal after the mediation but before the parties sign a proper agreement.


I should also mention that usually mediation is a confidential process.   That means that what everyone says at mediation stays a mediation and the parties cannot use what someone said at mediation against them later in court or at an arbitration.  The purpose of this is to facilitate open discussion and consideration of the all the possible options without a party being concerned that if he or she considers something, that will be used against him or her later.  That can really facilitate the negotiations  and help reach a settlement.  So, if one of the parties says that they would agree to something at mediation, but then refuses to sign an agreement, no one can hold that person to what he or she said at mediation. The same thing holds true to anything that anyone, a party or the mediator, says at a confidential or closed mediation.  Until there is a final formal written agreement, nothing at mediation is binding.


Ontario also has a process called “Open Mediation.”   In that form of mediation, the discussions are not confidential, the parties can quote them to a judge later, and the mediator often writes a report for the judge to read later if the parties don’t settle.  This form of mediation is more often used in parenting disputes where the mediator, who is also a parenting professional, can provide observations about the parents commitment to the best interests of the child and those observations can replace a more expensive formal parenting assessment.  The fact that what happens at mediation will end up before a judge often prevents parties from being unreasonable and keeps them on their best behaviour.   It also can mean that the parties will do and say things to impress a judge, rather than what they actually believe, or what they intend to do.  However, while the mediators comments about mediation are not binding on the judge, and certainly can be the subject of cross examination if the matter goes to trial, the mediators comments can be VERY persuasive in parenting matters.  Still, the judge has to base the decision on the evidence presented in court, not on the opinion of a mediator.  So, even in open open mediation, the opinion of the mediator is not binding on the parties.


When parties want the opinion of a third party, other than a judge, to be binding on them, they are thinking of arbitration.  If the parties sign an arbitration agreement, for which Ontario Law requires that they consult with a lawyer first, then the opinion of the arbitrator will be binding on them, exactly the same as a court order – under Ontario’s Family Law Act, arbitration awards can automatically be converted to court orders – subject to an appeal to the Court. 


Like mediation, arbitration is a voluntary process in that both parties have to agree to go to arbitration and they have to agree on the arbitrator.  They also have to decide on the decision-making process that the arbitrator will use. Unlike at mediation, even though an arbitration can take place in the same type of room as a mediation, the role of the arbitrator is NOT to help the parties to reach a settlement.   The role of an arbitrator is to decide the case based on Ontario Law and then impose a binding decision, just like a judge.   Arbitration can be faster, much less expensive and less adversarial, and the parties get to pick who makes the decision, unlike in Court where the parties cannot pick the judge.  But, the trade off for the binding decision is that the parties lose control creating the terms of the final resolution.  Hopefully, they pick a judge who gets to know and understand the family better than a Family Court Judge with many different matters on the docket can.


There is another option that combines mediation and arbitration.  It is called, not surprisingly, mediation/arbitration.  In that process, the parties sign a mediation arbitration agreement that provides that if the parties cannot reach an agreement on every issue at mediation, the mediator will become an arbitrator and impose a binding decision over all outstanding issues.  However, note that the mediation phase of mediation/arbitration is still confidential and what anyone says cannot be used against them later – even the mediator is not bound by what he or she said if the matter goes to arbitration.  During the arbitration phase, the arbitrator must based his or her decision on the evidence presented at arbitration and how Ontario Law applies to that evidence.  That can be different that what the arbitrator might suggest and that the parties might agree to at mediation where their settlement does not have to be based on evidence and they can agree to anything that is not illegal, which gives many more options than what result Ontario Law says must be imposed where people cannot agree.


So, if the parties cannot agree at mediation, or if one party walks away from mediation, they are just walking into an arbitration that is conduced by the person who was the mediation, and knows the parties well, even if nothing that happened at mediation can be used at arbitration.   It is a term of the mediation/arbitration agreement that a party cannot walk out of mediation and head to court instead of arbitration.  So, while what the mediator says at mediation is not binding, it certainly has “some teeth” if that mediator will impose a binding decision if the parties cannot agree  after hearing the mediators comments.


Collaborative Practice is another way to have professionals, including the lawyers, facilitate a settlement like in mediation.  Collaborative Practice is ALWAYS confidential and it is a basic premise of Collaborative Practice that what is said there can never be  used at court.  The whole process is based on the free and open exchange of ideas to help the parties come up with the best possible settlement for them, so there can be no fear that anything that someone says will be used agains them later.   Like with mediation, nothing at Collaborative Practice is binding until the parties sign a proper agreement.  There is more a out collaborative practice in this book.


Mediation itself is not binding.  In the confidential process, people cannot be held to what they say.  The mediator or either party can end the process if anyone is acting in bad faith – or for any other reason.  But, if the parties sign a formal separation agreement at mediation, or after mediation, that is binding.   Arbitration or mediation/arbitration are both processes where the a result a binding result can be imposed on the parties.   Whether to allow for a result or imposed or whether to stay in a process where the parties have to reach an agreement is an important decision that separated spouses have to make.   Getting help with that decision to make sure you do what is best for you, and your kids, is an excellent reason to get the advice of a good family lawyer who knows all about Family Court and all the alternatives to Court to make sure you make right choice.

Guide to the Basics of Ontario Family Law - 4th edition cover


To get the best advice, specific to your situation, you should speak to family lawyer.  Certified Specialist in Family Law, John Schuman, is known for his concern for children in separation and divorce and has won many child custody cases.  To contact John call 416-446-5847, email him, or fill out the form below. You can use the same form to comment on this page.

Get_it_on_iBooks_Badge_US_1114
new kindle logo
New Kobo Logo

Get the paperback on:

amazonlogo


You can get a lot more information about Ontario Family Law issues, including a comprehensive explanation of the Family Law related to parenting after separation, child support, and most other common family law issues by downloading this $9.99 Kindle eBook, Kobo eBook, or iBook for your iPad or iPhone or ordering it from Amazon as a paperback.

   

Many thousands of people get family law assistance from this website everyday.  If you have found this page useful, please share it on your social network using the Facebook, Twitter, LinkedIn and Pinterest buttons at the bottom of the page.  Please comment on this page using the comments section at the bottom to share your thoughts on the best ways to resolve matters for your children after a separation.


Contact Us:


© John P. Schuman and John P. Schuman, Professional Corporation - 2012-2021