Family mediation is a process in which a neutral third party — the mediator — helps separating spouses communicate, identify their interests, and negotiate an agreement on the issues arising from their separation. The mediator does not make decisions. They facilitate. The parties make decisions themselves.
Mediation can address any family law issue: property division, the matrimonial home, spousal support, child support, parenting arrangements, and more. If an agreement is reached, it can be formalized in a separation agreement that is legally binding.
Court litigation involves filing legal documents, following court procedures, exchanging financial disclosure, and ultimately appearing before a judge who decides contested issues. It is the formal adversarial process most people picture when they think of "going to court."
Who decides: In mediation, you decide. In court, the judge decides. This is the most important difference. A judge applies the law to the facts; they don't necessarily reach the outcome either party would have chosen.
Cost: Mediation typically costs a fraction of what litigation costs. A contested family law trial can cost $50,000 to $150,000 or more per side. Mediation can resolve the same issues for a few thousand dollars.
Timeline: Mediation can be completed in weeks or months. Court proceedings typically take 2 to 4 years, sometimes longer.
Privacy: Mediation can be confidential ("closed" mediation) or could later be used in court ("open" mediation). It depends on the terms of mediation that the parties agree to. Court proceedings are generally public.
Flexibility: Mediation allows creative solutions that a court cannot order. You can agree to things that fall outside the strict framework of what a judge can impose.
Mediation is not suitable in every case. It generally isn't appropriate where there is a significant power imbalance between the parties, where one party has not been fully honest in financial disclosure, or where there is a history of family violence that would compromise one party's ability to negotiate freely. In these situations, the protection of the court process is more important.
Many people use mediation to reach agreement, then have a lawyer review and formalize the result. Others use mediation to narrow the issues, then litigate the remaining ones. Mediation and the court process are not mutually exclusive.
John Sheard is a family mediator currently working on certification, and also an experienced family law litigator. He can help you assess which approach — or combination of approaches — is most appropriate for your situation.
This is a general overview. For advice specific to your situation, contact Sheard Law at 416-860-9990 or use our intake form.
