Role of Lawyers in Family Mediation

By John Goodwin of John G. Goodwin, Family Mediator/Collaborative Family Lawyer/Family Lawyer posted in Family Mediation on Wednesday, December 7, 2016.

When clients choose mediation, they have made a choice to be directly involved in the meetings to resolve their issues. In the majority of cases, the meetings consist of the spouses and the mediator only. Occasionally, and on an as needed basis, lawyers may be present.

They lawyers for mediation clients are advisors and consultants – they are not advocates or representatives as they might be in either litigation, arbitration or lawyer-lawyer negotiation.

However, there are some types of mediation that are developing where “mediation Advocacy” is considered important. In this process, the lawyers attend the mediation session and assume the role of advocates. They prepare briefs and argue on behalf of their clients. This is a departure from traditional family mediation where the clients are the primary participants, sitting at the same table with each other and are primarily responsible for the outcome.

Both the Law Society and the Ontario Association for Family Mediation highly recommend that parties to a mediation have independent legal advice, but it is not, strictly speaking required by either.

Clients can see their lawyers either before or after the first mediation session and on an as needed basis during the mediation.

Lawyer mediators are allowed by the Law Society to give the parties legal information but not legal advice. Legal information is straightforward, black and white information about legal rights and obligations. For example, the fact that child support is payable or the amount of the Child Support Guidelines support according to the tables may be legal information. Legal advice consists of the gray areas where it is a matter of professional opinion – for example the amount of support or whether there is an entitlement to support might be the subject of advice.

During the mediation, the mediator will provide legal information and advise the parties when there are issues that require legal advice.

Before the conclusion of the mediation, it is the lawyer’s job to:

1. Review the draft Separation Agreement to make sure that is says what his or her client wishes it to say,

2. Review the Net Family Property Statement to make sure that the valuation date, the deductions, the exclusions and the equalization calculation are all correct and that the backup documentation supports the figures,

3. Determine whether the parties are departing from the scheme of a Family Law Act, and if so to ensure that their client understands this and that there is a valid and acceptable reason from their client’s point of view for this departure.

When they have completed their review, the lawyers will write their comments to the mediator.

The mediator will then review the comments and determine the best way to resolve any outstanding issues, either by way of a phone conference with the clients, a further meeting with them or some direct involvement with the lawyers.

Once the form of the agreement is finalized, the Separation Agreement will be signed in the lawyers’ offices and a copy of the fully executed agreement forwarded to the mediator’s office.