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Policies for Government-Funded Mediation Services at the Family Court


Principle

Alternative dispute resolution is an integral component of the Family Court concept. Accordingly, family mediation services are available in connection with all Family Court locations in Ontario.

The policies, principles and practices established for government funded family mediation services are consistent in all Family Court locations.

Defining Family Mediation

Mediation in family law matters is a voluntary, non-adversarial dispute resolution mechanism in which an impartial, professionally trained mediator assists clients, of a relatively equal bargaining position, to reach a mutually satisfactory agreement on issues affecting the separated family. Mediation is a facilitative technique, not an advisory one. The mediator's role is to act as a facilitator, to assist the disputing parties in arriving at their own solutions.

Issues to be Mediated

The mediation services shall provide mediation of issues arising upon family breakdown including custody, access, support and equalization of net family properties.

Staff Issues


Mediator Minimum Qualifications

Mediators shall have comparable qualifications to those of a "practising mediator" as set out by the Ontario Association for Family Mediation (OAFM). This would ensure that they have a professional degree or equivalent (significantly directly related experience), a minimum of 60 hours of training in family mediation (a basic and advanced level course), a minimum of 100 hours of supervision and/or a minimum of 5 cases mediated to the point of agreement where a practising OAFM mediator has provided supervision and/or consultation.

In addition, all mediators must demonstrate the knowledge, skills, abilities and other personal attributes listed in Appendix A.

Supervision of Staff

Each service shall have in place a quality assurance system designed to ensure that its services are of consistently high quality and that service providers are properly screened, trained and monitored. The system must provide for the monitoring of individual cases and for regular opportunities for mediators to meet together for case consultations. Each service must have at least one mediator in a supervisory position who assumes responsibility for ensuring that the quality control system is strictly adhered to on a consistent basis.

Intake and Screening

Mediation is not appropriate for every case. It is essential that before a case is accepted for mediation, that the mediator be satisfied of the following:

  • that abuse has not occurred that has rendered either party incapable of mediating;
  • that no harm will come to either party or the children as a result of mediating;
  • that the parties' desire to mediate is voluntary;
  • that any inequality in bargaining power can be managed so as to ensure that negotiations are balanced and procedurally fair;
  • that parties are psychologically ready to mediate and have the capacity to do so;
  • that the complexity of the case does not exceed the mediator's education, training and competence.

To protect clients from blame or reprisal from the other party, in the event that a client is assessed to be unsuitable for mediation, the mediator should indicate only that:

"Mediation has been discussed with both parties and the mediator is of the opinion that mediation would not be the most beneficial method of resolving their dispute at this time." Mediators must have significant experience and depth of knowledge in screening and assessment to determine a client's suitability for mediation.

As a general guideline, it is suggested that approximately 2 hours is an appropriate amount of time to conduct an initial intake. This is based on an average of one hour for each party interviewed separately.

Voluntariness

Fairness of the mediation process requires that both courts and mediators protect the parties' right and ability to make free and informed choices about whether and how they would like to settle the issues between them. Mediation services should be strictly voluntary. Clients must understand that a decision not to participate in mediation will have no impact on their legal rights or options.

Cases Involving Violence in the Family/Abuse

Mediation is a process suited to people who are in a relatively equal negotiating position. In cases involving violence in the family/abuse, where there is a clear and inherent power imbalance between the spouses, mediation may not only produce unfair results but may also perpetuate one party's control over the other and potentially place the disadvantaged party at risk.

Mediators must be vigilant in their efforts to screen their clients for abuse and other issues related to power and intimidation. Screening must be conducted during the intake stage and, given that direct disclosure of violence in the family/abuse does not necessarily occur at the intake stage, there must be continuous screening throughout the mediation process. The safety of clients must be placed first and foremost. Whether victims of violence in the family/abuse are identified at intake or later in the process, they must be given support for their disclosure, urged to obtain independent legal advice (if they have not already done so) and encouraged to explore the availability of protective orders and other community resources.

The mediation services are required to commit to the following goals:

  1. the identification of violence in the family/abuse;
  2. the safety of victims of violence in the family/abuse;
  3. ensuring that mediation is offered only when it is truly voluntary;
  4. to give clients who have been disempowered by violence in the family/abuse the support and safety they need to refuse to mediate;
  5. to identify cases which are not suitable for mediation and to refuse to mediate in these cases while suggesting to the parties other means of resolving their dispute and ensuring safe termination;
  6. to encourage assertiveness of victims of violence in the family/abuse; and
  7. to provide clients with information about community resources which can be of assistance to them and their children.

Protection of Clients' Legal Interests

The mediator must be in a position to know when one of the parties seems to be operating without adequate knowledge or understanding of their legal position. Mediators must have a good understanding of the legal principles involved in the areas in which they are mediating. Clients must be encouraged to seek independent legal advice, particularly in cases where there is doubt that they are not fully aware of their legal rights.

Non-lawyer mediators doing comprehensive mediation must have access to regular consultations with experienced lawyers, and other family law experts, as necessary.

Mediation Summary Report

An agreement on mediated issues must not be signed in mediation. Mediators must advise and strongly encourage clients to seek independent legal advice before concluding any binding agreement. The only document which should be produced by the mediation service is a report prepared by the mediator, which is not signed by the parties, detailing any agreements reached to date.

French Language Services

Mediation service providers must deliver mediation services in French, if such is the language of choice of the client. Such mediation services are to be provided directly to the client and not through the use of interpreters or translators.

Number of Mediation Hours

Publicly funded mediation services should be focused on helping couples who are capable of and willing to resolve their issues in a relatively short period of time.

The average number of hours of mediation offered shall be 9 including intake. This shall be monitored by the supervising mediator for the service.

Mediation Services Agreement

It is good practice to have the mediator enter into a mediation services agreement with each client at the commencement of the mediation process.

Open/Closed Mediation

Mediation services should provide both open and closed mediation. The agreement to mediate, which is entered into between the mediation services and the clients, must clearly describe to the clients the potential implications of entering into open mediation.

Lawyer Involvement

All mediation services are required to maintain a very flexible approach with respect to the involvement of lawyers in the mediation process. Mediators should stay in close contact with the lawyers acting for their clients and involve them in the mediation process as appropriate in the particular circumstances. For example, lawyers might be invited to attend mediation sessions with their clients to help balance bargaining power on a particular issue where one party is at a disadvantage, where there are complex legal issues involved, or to help parties move through an impasse.

On-site Presence

Providers of mediation services shall have a presence at the Family Court location, including satellite court locations where applicable. The advantages of on-site presence include facilitating communication amongst judges, lawyers and mediators; increasing the likelihood of mediation services being well integrated into the justice system; increasing the accessibility for clients and facilitating quick resolution of narrow issues where appropriate.

On-site services will include intake, screening and mediation of narrow issues in appropriate circumstances.

Monitoring and Evaluation

In order to monitor and evaluate service delivery, mediation services are required to maintain statistics on referral to intake, mediation services and outcomes, and to provide regular reports to the Ministry which summarize this information. In addition to the reporting of quantitative information, mediation services are required to provide qualitative data to the Ministry on a regular basis. This may involve surveys to be completed by clients of the service after having undergone the mediation process.

The information collected and reported to the Ministry will be consistent across services.

User Fees

User fees shall be charged by mediation services for off-site mediation.

User fees offer two main advantages:

  • According to mediators, provided that they are fair and affordable, the charging of user fees results in valuing the services more and also in greater motivation on the client's part to resolve the issues.
  • Fees can offset some of the costs for operating the mediation service.

Fees must be structured so as not to prevent access to the service by persons of limited financial means and must be waived for those unable to pay. The mediation service is expected to determine the client's ability to pay user fees.

Fees must be charged on a sliding scale basis according to a user fee schedule set by the Ministry. It is expected that the mediation service will use the revenue generated from user fees to offset operating costs.

Reporting

For the purpose of daily operational liaison with the Family Court office, the mediation services are expected to liaise with the local court management.

For the purpose of dealing with policy matters and standards for service delivery, the mediation services are expected to liaise with designated staff at the Ministry.

Linkages

It shall be the responsibility of the mediation service to make the community aware of the availability of the service and to liaise closely with the local judiciary and family law bar.

Staff of the mediation service may be required to either work closely with or participate on local committees (e.g.- local Resource Committee and Liaison Committee).

Ministry Meetings

In an effort to ensure consistency in standards of service and to maintain an ongoing relationship with the mediation services, the Ministry will schedule quarterly meetings for staff of the mediation services.