Mediation has become a very popular alternative to litigation in family law matters. More Ontario lawyers use mediation than B.C., Alberta, or Nova Scotia lawyers to resolve disputes, according to Canadian Forum on Civil Justice research. Mediation’s key benefits include the potential to save time and money, and the potential to maintain an amiable relationship following resolution. Litigation can take twice as long and cost twice as much as mediation. Litigation is also more likely to have a ‘winner’ and a ‘loser’ mentality, which can impact relationships afterward.
Clients who take a focused approach to mediation can also get more out of the process. Reaching agreement beforehand on items which aren’t in dispute, and focusing mediation time on issues that aren’t resolved can save time and money.
Litigation doesn’t necessarily cost twice as much as mediation, if the court’s time is used to resolve specific issues. This makes the litigation costs more manageable, because you’re identifying and narrowing the dispute.
Court becomes expensive if it’s used for the sake of it, or to get attention, rather than as a dispute resolution mechanism. Litigation isn’t more or less expensive in and of itself. Litigation is often more expensive because people use it the wrong way. The same can be said of mediation. When clients push the file across the desk and say, “here you go, sort this out,” it increases costs, because we’re now deeply immersed in all aspects of the case.
We advise parties to add structure to their mediation proceedings by narrowing the issues to be mediated as much as possible. Focusing the dispute on specific issues means the procedure to resolve them can be focused as well. This makes it faster and more cost effective, because defined parameters help manage expenses.
Mediation is also good for people on a budget, because they can proceed on a ‘pay-as-you-go’ basis. A mediator is retained, you provide your briefs, and attend for the day. If you reach a settlement, great. If you don’t, you can choose to come back another day, having a good idea how much it will cost.
This expense management element is another key benefit of mediation. If all matters aren’t resolved in mediation, the parties will at least have a better understanding of their challenges, and each other’s positions. In this way, mediation helps focus effort on the most important issues, and ensures all perspectives are heard, outside a win or lose forum.
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.