How does mediation compare with going to court on cost and time?

Who pays for mediation

In private mediation the two of you pay the mediator, usually in equal shares, plus your own lawyers for advice between sessions and the agreement at the end. Where a court appoints a mediator under section 3 of the Family Law Act, the court sets the proportions, and can order one party to pay all of the fees where the other would suffer serious financial hardship.

Court-connected mediation is the low-cost route. On-site mediation at every Ontario family court is free on the day your matter is scheduled. Off-site mediation, available any time and without a court case, is charged on a sliding scale based on income and number of dependents, and providers can reduce or waive the fee. Check the current fee schedule on ontario.ca.

What court costs, in money and time

A contested family case runs through a Mandatory Information Program, a case conference, disclosure motions, a settlement conference, a trial management conference and, if nothing settles, a trial. Each step has court filing fees, set by regulation and published by the ministry, and each step is lawyer time on both sides. Most cases settle before trial, but the ones that do not can take well over a year.

Costs are also a legal concept: a court can order the losing or unreasonable party to pay part of the other side's legal fees, and failing to give financial disclosure is a recognised reason for a costs order. Court is not only expensive; it is expensive in ways you do not control.

What only a court can do

Mediation cannot compel anything. A court can. Only a court can order a spouse to produce financial disclosure and draw inferences if they do not; make an interim order for support or a parenting schedule while the case continues; restrain a spouse from harassing you or from selling or moving assets; and grant the divorce itself, which is an order under the Divorce Act that no agreement can replace.

Where any of those is needed now, court comes first and mediation, if at all, later. Where none of them is needed, court is a slow way to reach the settlement most cases end in anyway. A lawyer's first job is to tell you which situation you are in.

Mediation during a court case

Starting a case does not close the door on mediation. Ontario's guidance says you can mediate before a case, at any time during it, and free on-site mediation is designed for people already at the courthouse. Judges regularly adjourn to let parties try it, and a partial settlement narrows the case even when it does not end it.

Section 3 of the Family Law Act lets the court appoint a mediator you have chosen, on motion, with a full or limited report. The Divorce Act's section 7.3 duty to try dispute resolution continues while the case is running. Many mediated separations begin as court files that both spouses grew tired of.

Med-arb and collaborative law as middle roads

Mediation-arbitration gives you a mediator who becomes an arbitrator if you cannot agree, so the process ends with a decision either way. It is regulated: the agreement must be in writing, each of you needs independent legal advice and a certificate under section 59.6 of the Family Law Act, and the arbitrator must confirm you were separately screened for power imbalance and domestic violence. Arbitration awards are private and enforceable through the court.

Collaborative family law is different again: each of you has a lawyer trained in the process, everyone signs an agreement not to go to court, and the lawyers must withdraw if anyone does. It suits couples who want advocates in the room but not a judge.