Identifying an unsuitable case for mediation.

It’s important to be able to recognize when a case is unsuitable for mediation Despite the cost and time-saving potential, mediation isn’t the best option for every case. In some cases, mediation can actually waste time. This is one reason why mandatory mediation isn’t ideal. Mediation is well-suited to people who want it, but not always to those who don’t.

A recent Canadian Forum on Civil Justice survey found that 89 per cent of Ontario lawyers use mediation to resolve custody and property division matters. The survey also found that mediation typically costs half as much as litigation, but results varied drastically, depending on the circumstances of a case. The average low-conflict case settled by mediation in about five months for $6,000, but high-conflict cases took almost three times as long, and an average cost of $30,000.

Cases where mediation may not be suitable usually fall into one or more of these categories:

  • Ugly conflicts: In high-conflict cases, the parties may use mediation as another ring in which to fight.
  • Binary cases: Cases which have an obvious winner and loser lack flexibility to create a solution both sides can accept. This is true with mobility cases, where the person will either be allowed to move with the child or they won’t. A creative solution may be possible, but a mediated settlement is much harder to achieve.
  • Multiple parties: It becomes more complex when third parties such as parents or private mortgage lenders, or where property issues are in dispute. Mediation still works, but the challenge is getting all parties in the same room. Without everyone present, it’s hard to make a deal.
  • Domestic violence: Many cases involve allegations, but when spousal violence has been objectively determined, it’s probably not a suitable case for mediation.

Herschel Fogelman, family lawyer and mediator, Toronto

Herschel Fogelman is the founder and principal of Fogelman Law, a family law firm in Toronto. Herschel is a Best Family Lawyer, and is listed in the Lexpert Directory. An experienced family law mediator, arbitrator, and litigator, Herschel pioneered Customized Case Management, a unique service that streamlines and customizes the processes and schedule in family law cases.