Is Family Mediation Binding?

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 consider 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 them, 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 is 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, the 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 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 their separation. That meeting can be virtual – over Zoom, phone or otherwise. Sometimes, the separated spouses don’t actually see each other, as they meet with the mediator separately, which can be more appropriate in circumstances where having the parties together will just result in a fight, or Owen’s 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 from 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 mediator’s 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, then that party can walk away. In fact, a party can walk away from mediation for any reason before the parties have reached an agreement.

The goal of mediation 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.

John Schuman Guide to the Basics of Ontario Family Law book cover

You can get a lot more information about Ontario Family Law issues, including a comprehensive explanation of parenting cases (parenting time and decision making), child support, spousal support, property division, 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. But to understand how the law works precisely in your situation, it is always best to speak to a good Family Law Lawyer.

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