Separation Mediation in Ontario: Is It Right for You?

When a relationship ends, many people hope to settle things without a courtroom fight. Mediation is one of the best-known ways to try. But it is not right for every separation, and a poor fit can leave you worse off than before you started.

This article explains what mediation is, who it tends to suit, the warning signs that it may be unsafe or unlikely to work, and how to decide. It is general information, not legal advice for your situation.

What separation mediation is

Ontario describes mediation as a voluntary process in which a trained, neutral third party helps the two people reach an agreement. The mediator does not give legal advice or make decisions.

That makes it different from court, where a judge decides and you must follow the order. Mediation sits on a list of options Ontario sets out for resolving family issues before starting a case: negotiation, mediation, collaborative family law, arbitration and court.

Because the mediator does not give legal advice, many people choose to speak with a lawyer separately, before and during the process, so they understand their rights before signing anything.

When mediation tends to be a good fit

Ontario says mediation requires you to be willing to work toward a solution, to feel safe meeting the other person, and to be able to discuss your needs and listen to the other person's concerns.

• Both of you want to reach an agreement rather than win.
• You can each speak openly without fear of the other person.
• You can listen to the other person's concerns even when you disagree.
• You are open to practical compromise on issues such as parenting arrangements or support.

There is also a legal reason to take resolution seriously. Under the Divorce Act, where appropriate, the parties to a proceeding shall try to resolve the matters that may be the subject of an order through a family dispute resolution process.

When it may be unsafe or unlikely to work

Ontario's guidance says mediation may not be appropriate where there is violence or abuse in the family relationships, and that in those cases going to court may be the better option.

Justice Canada adds that some dispute resolution processes may not be appropriate in cases of high conflict, power imbalance or family violence. For example, a controlling parent can prevent the other from speaking up in a joint session.

• You are afraid of the other person or worry about how they will react.
• One person controls money, decisions or the conversation.
• One of you is not willing to negotiate in good faith.
• You feel pressured to agree to things you do not understand.
• The conflict is so high that you cannot sit in the same room.

If several of these apply, speak to a lawyer or a family court support service before agreeing to mediate. Some options, such as shuttle mediation, do not require you to be in the same room. In shuttle mediation the mediator speaks to each person separately. Whether any form of mediation is suitable still depends on your safety and the facts.

Safeguards and costs in court-connected mediation

In court-connected family mediation, the mediator meets each person separately at intake to make sure you are in an equal negotiating position, and screening continues throughout to ensure ongoing safety. Court-connected mediators must have at least 60 hours of family mediation training and 21 hours of intimate partner violence education.

Private mediators set their own fees, so ask about cost, training and how they screen for safety before you book.

What to do next

Start by asking yourself honestly whether you feel safe and able to speak up. If you are unsure, talk it through with a lawyer or a family justice service first.

• Write down the issues you need to settle, such as parenting, support and property.
• Decide whether you feel safe meeting the other person, in the same room or separately.
• Ask any mediator how they screen for violence and power imbalance.
• Get independent legal advice before you sign any agreement.
• If mediation fails or is unsafe, ask about court options and which court hears your issues.

Frequently asked questions