Mediations of Family Law Disputes: Donna Wowk Provides Insight on Amicable Resolutions

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Mediations of Family Law Disputes: Donna Wowk Provides Insight on Amicable Resolutions
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The end of a relationship necessitates a transition that can be painful for both parties, especially when children are involved who are also having to cope with their parents' separation.  The challenges of this transition may be eased by the parties engaging in a process that involves less conflict.  The goal will generally be for an expeditious and amicable resolution of the legal issues arising from the breakdown of the relationship.  To that end, mediation of some or all issues should be considered.  

According to Toronto family law lawyer Donna Wowk of Wowk Law, litigation can exacerbate the conflict between separated parties.  It is an adversarial process which, by its very nature, supports conflicting one-sided positions.  In some cases, it is the only realistic alternative for the determination of the legal issues arising out of the breakdown of a marriage or cohabitation.  However, it is Ms. Wowk's opinion that, in all cases, mediation should at least be considered and, in appropriate cases, discussed with the client.

What is Mediation

Mediation is an alternative dispute resolution process whereby a trained mediator meets with the parties, separately and together, to help them define the issues and understand the other party's position, with a view to facilitating a resolution of some or all the issues. 

Mediation can involve the parties' lawyers or not.  Generally, the parties' lawyers are not present for parenting mediation while their lawyers generally will attend mediation of the financial issues.  

Before participating in mediation, the parties must each be screened for the presence of domestic violence or a power imbalance that makes mediation inappropriate. 

If the mediation is successful in resolving the case, it will have been a less expensive, less stressful, and less conflictual process than having engaged in a court proceeding. The alternative dispute resolution process will have also given the power and control of the family law issues back to the parties who will have reached an agreement they both consider satisfactory, as opposed to asking a judge who does not know their family to make decisions that may not have been satisfactory to either party.

How To Choose a Mediator

Donna Wowk's advice to parties is to retain a mediator trained in this form of dispute resolution and knowledgeable of the law in relation to the issues submitted for mediation.  It should also be someone whose opinions they will respect. She notes that parenting mediation is often conducted by a clinician, knowledgeable about the appropriate parenting time schedules for children having regard to their age and stage of development, and any special needs, among other things.  There are also lawyers who conduct parenting mediation, including Ms. Wowk. Mediation of financial issues is generally conducted by a lawyer and the parties' lawyers will generally attend these mediations. 

How Does the Process Work?

Once you and your partner agree to attend mediation and have chosen a mediator, the next step will be for you both to be individually screened for domestic violence and/or a power imbalance that renders mediation inappropriate.  If present, the question will be whether or not adequate safeguards can be put in place for mediation to proceed.  

Wowk explains that the mediator will generally start with a call with counsel for the parties to determine the issues being submitted for mediation.  The mediator will provide his or her mediation agreement for the parties and their counsel to review and execute.  

Prior to the mediation, the parties will exchange Mediation Briefs which will also be provided to the mediator in advance of the mediation.  At the mediation, the mediator will generally meet with the parties, their counsel and any other professionals, for an introduction to the process. The process for the balance of the mediation varies, depending on the mediator, the views of counsel and the parties themselves, and the dynamics between the parties.  The mediation may be conducted with the parties, and their counsel, in separate rooms with the mediator 'shuttling' in between; with everyone in the same room; with the mediator meeting with counsel together without the parties, or some combination or variation of these alternatives.

While the mediator will not provide legal advice, he or she may provide their views on the merits of the parties' respective cases, if asked.  They are less likely to do so if the this is a mediation/arbitration, rather than mediation alone.  

If the parties are making progress, they may agree to attend further mediation sessions. There may also be calls between counsel and the mediator in the interim to monitor progress and discuss resolution of interim issues.  

If the parties reach a final agreement in the mediation, Wowk strongly recommends that the parties commit the terms agreed upon in writing prior to leaving the venue.  This will generally be by way of Minutes of Settlement but may take another form, as agreed. 

The Bottom Line

Mediation may result in a more amicable relationship with your former spousal at the end of the day than would be the case if you proceed by way of litigation.  Less conflict, and an amicable and expeditious resolution will likely be better for any children involved who may be significantly affected by exposure to conflict between the parties.   

It is important to remember that mediation may not be appropriate in every case as each situation is unique.  It is best to discuss your case with a family law lawyer, including this and other forms of alternative dispute resolution.   

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