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Ask a Divorce Lawyer: Mediation: Evaluate or Facilitate?

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Brahm Siegel is a Toronto family law and divorce lawyer, mediator and arbitrator. He will answer your questions on all aspects of family law. Write to him at bsiegel@nathenssiegel.com.

Most folks know about mediation. Mediation is a method of dispute resolution where the parties agree on and appoint an independent and qualified third person to help identify their interests, try to find common ground and create a bridge leading to settlement. In divorce law, mediators can be social workers, psychologists, practising lawyers and even former judges. Even in the court system, however, judges sitting in "case management" use mediation-style techniques to bring litigation to a close.

Many people think mediation does not involve lawyers. False. Mediation can simply occur between spouses and mediator but often this is not enough. In certain cases, especially high-conflict cases or cases involving significant sums of money, property or complicated legal issues, both parties have counsel. While mediation without lawyers can be cheaper than lawyer-assisted mediation, I have experienced many disappointed clients who, having thought they negotiated a good deal, tried to undo it before it was signed but went to see a lawyer for advice after the mediation. This is why it is a good idea -- if you can afford it -- to have a lawyer at the mediation or at least in the background to give you advice as it progresses.

Lawyers representing clients in mediation do not generally act the same way they do in litigation. They do not take over the process. Rather, they tend to take a backseat, at least in the initial stages, as the mediator tries to connect directly with the clients. Of course, over the course of the mediation the client will often consult with the lawyer about various options. For the lawyer therefore, a delicate balancing act goes on between, on one hand, giving the mediator the freedom to explore interests and options with the parties, and on the other, being ready, willing and able to advise the client when any proposal or recommendation is put on the table.

A common misconception is that mediators simply work hard in an effort to bridge the two parties' positions and do not take "sides". That is not, at least in my experience generally, the case. At the heart of this misunderstanding is a failure to appreciate the difference between "facilitative" and "evaluative" mediation.
Facilitative mediation is where the mediator uses his skills to try to find a solution to the problem at hand without giving his opinion. In this kind of mediation the clients should not know what the mediator thinks about the case, how it would likely be treated by the court or whether or not a person's position on any issue is strong or weak. Almost all mediation starts -- and many end -- this way, meaning that if no settlement is reached neither party should know what was in the mediator's head in terms of who was more reasonable and who was more responsible for the deal falling through.

In contrast, in evaluative mediation the mediator does all the same work as a facilitative mediator but, at some point -- usually when there is a major impasse -- he will venture some guidance or an opinion as to the likelihood of success on a particular point if the case proceeds to court or the merits of a certain proposal.

This is dangerous territory for the mediator and the parties. The mediator runs the risk of being seen as impartial and one party has much less incentive to make concessions if the mediator's opinion favours them, which may make it harder to reach a settlement. On the other hand, in many cases, the mediator will have gauged the parties correctly and after providing the opinion, one person's position changes which paves the way for a settlement. For this reason, the mediator needs to tread delicately before embarking on this kind of path. Speaking not only in general but in my own experience as mediator, usually evaluative mediation happens only when a person has taken a position that is quite extreme, has very little chance of success in court or taken it only to make it seem they're being reasonable later on when they give up on it, even though they haven't given up really anything.

Have a question about family law? Ask Brahm at bsiegel@nathenssiegel.com.

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