Mandatory Family Mediation Information Session

The province of Ontario will now require divorcing couples to attend an information session on mediation, which will be necessary before their proceedings can go forward. This information session is meant to provide alternatives to the court system in the hopes that it will alleviate the heavy caseloads many courthouses are facing.

As reported by Ms. Kathryn Blaze Carlson in the National Post:

By mandating the information session, and by subsidizing mediation for couples who choose to forgo litigation, Ontario has joined an international push toward mediation and away from costly, time-consuming and oftentimes nasty litigation. Britain and New York’s Nassau County recently joined states such as Utah and Florida in requiring that divorcing couples attend at least one mandatory mediation session.

And while Ontario has not gone to that extreme, these latest measures are similarly aimed at reducing court backlogs and the impact of legal disputes on people’s bank accounts and children.

Quebec imposes a similar obligation on divorcing couples who have children. Indeed, the Quebec Civil Code of Procedure states that:

814.3. Except applications under article 814.9, no application that involves the interests of the parties and the interests of their children may be heard by the court if there is a dispute between the parties regarding child custody, support due to a party or to the children, the family patrimony or other patrimonial rights arising from the marriage or civil union, unless the parties have attended an information session on the mediation process and a copy of the mediator’s report has been filed.

Mediation requires the voluntary participation of two parties who are open to arriving at a compromise, which is not always the case with couples in the midst of a divorce. From another perspective, perhaps these sessions will strike a cord with those who have no intention of getting involved in a long and often expensive legal battle. It will certainly be interesting to see the effect of these two-hour information sessions on court backlogs.

Comments

  1. While I have no objection to an information session, mediation itself should never be permitted in any relationship where there has been recent abuse. Mediation assumes that the parties have equal bargaining power. Not only is the victim of abuse unable to bargain equally with her abuser, she is unable to explain in sterile surgical legal terms why she is unable to bargain equally with her abuser.

    And not all forms of mediation will produce fair and equal results, especially those based on ideologies that do not subscribe to our Charter of Rights and Freedoms.

    And before I get slammed for using the female gender for the victim: I recognize that men get abused too, by both male and female partners, but statistically speaking most of the physical abuse in heterosexual relationships is against women and children.

  2. Like the Globe and Mail article I saw, this article is somewhat misleading. The requirement is not restrict to, or specific to, divorce proceedings. In fact, an uncontested divorce with no other relief sought is not affected. It is more accurate to speak in terms of family law proceedings rather than divorce.
    It is also worth noting that this requirement ironically only applies AFTER a proceeding is commenced, so how it will effectively result in diversion is doubtful.
    And that does not even touch upon how it wastes resources because it is mandatory, even though many couples are represented by competent lawyers who explain options; have financial advisers and resources available. What a waste of those people’s time, and public monies.

  3. The program recognizes that not all cases should be mediated, and specifically mentions cases of domestic abuse in that category. Nothing in our law, including the Charter, requires that people arrange their affairs in accordance with mainstream notions of ‘equality’. Parties can agree – without litigation or during litigation – to all kinds of arrangements. The Family Law Act makes domestic contracts enforcable whether or not in accordance with what a judge might have done, with a few exceptions for lack of disclosure or unconscionable results in support matters, and an overriding ability to judge the best interests of the child.

    Since the formal justice system does not know if people are having family problems until those people come to court, it cannot make them go to mediation before they announce themselves. However, the mediation sessions are to be made available if people want to use them before starting a proceeding. And taking people to a place where they may settle quickly or without more acrimony is a useful diversion, even if they start a proceeding first.

    The people who have participated in the pilot sessions have been largely content with them, as have the lawyers who have participated in giving the information. Neither the parties nor the lawyers have thought it a waste of time and money. That’s why the program is being extended across the province. Even that may not go far enough for the Chief Justice of Ontario.

  4. John,

    You are right. People can and do settle matters before and during proceedings in many ways and for many reasons.

    And wanting to avoid being in close proximity to her abuser might be one of the reasons a victim settles a proceeding on unfavourable terms (prior to mediation). It will not be until much later when she is able to recognise the debilitating effect of her abuse that she will realise that what she ended up with was not fair.

    And while I recognise that the administration of justice has an interest in eliminating backlogs, a speedy resolution on a abuse file is not usually in the best interests of the victim.