Mediating a family law matter involves clients meeting with a neutral third party, called a “mediator”, who facilitates resolution of some or all family law issues. Mediation is a guided process in which the parties determine, with the assistance of a mediator, what is best for them as individuals as well as for any children they may have, rather than having that decision made by a third party. Mediation is a voluntary process; no resolution can be imposed on either party without both of them reaching agreement.
Mediation can be flexible to meet the parties’ needs and can be of assistance to parties who are either at the beginning of their resolution process, or later, when other methods of dispute resolution have not been effective in resolving some or all of their matter.
- Mediation is usually less expensive than litigation;
- Mediation can bring a faster and often more satisfying result than litigation;
- The parties determine what their resolution will be; there is no court or judge making orders that either side may deem unpalatable;
- A consensual resolution usually results in less acrimony and resentment which operates to the benefit of the children who might be caught “in the middle”.
Why Choose a FAMLI mediator?
Choosing a mediator is an important decision in an industry which is not regulated in any way. FAMLI sets educational standards for our affiliated mediators, so you can rest assured that you will engage a qualified mediator:
- All mediators affiliated with FAMLI have a professional or advanced degree, either in law, psychology, social work, or marriage and family therapy;
- All mediators affiliated with FAMLI have taken not less than 40 hours of mediation training, including 16 hours of advanced family mediation training or equivalent;
- All mediators affiliated with FAMLI must also complete not fewer than 14 hours of training in assessing for power imbalances and domestic violence or its equivalent.
Parties normally share the cost of the mediator, whose hourly rate will be comparable to that of most lawyers’ hourly rates.
When parties cannot resolve issues between them, they may appoint a neutral qualified practicing lawyer to make decisions. The person appointed to make the decision is a called an “arbitrator” under The Arbitration Act of Manitoba. When you hire an arbitrator, they are effectively your private judge.
Litigation is both difficult to access quickly and is more expensive than other resolution methods. Due to several factors including its formality, it is not uncommon to experience delays in the court process. In arbitration, the parties can have quick access to a decision-maker whose decisions are binding on each party. In a family law case, a family arbitrator can make the same substantive, enforceable decisions as a judge would in court. In effect, the arbitrator’s decision or “award” becomes a court order – more quickly, privately, and usually with less expense than using a traditional court process.
Choosing arbitration means that your dispute-resolution process will be private; unlike litigation, where most documents that are filed and hearings are open to the public. When using arbitration, the parties can also determine how formal or informal the proceeding will be and have greater autonomy than in a traditional court process.
Because engaging in arbitration means having a third party make a decision which has the force of a court order, parties who wish to engage in arbitration in Manitoba must obtain legal advice from a lawyer independent of the arbitrator so that each person understands the risks and benefits of engaging in arbitration.
As with a mediator, the parties normally share the cost of the arbitrator whose hourly rate will be comparable to that of most lawyers’ hourly rates.
Why choose a FAMLI arbitrator?
In Manitoba, only lawyers with at least ten years of experience primarily in family law are permitted to arbitrate family law matters. FAMLI sets a higher standard – all of our affiliated arbitrators must also:
- Have completed at least 40 hours of mediation training, such training to include not less than 16 hours of training specifically in the area of advanced family mediation or its equivalent;
- Have completed at least 40 hours of arbitration training;
- Have completed at least 14 hours in assessing for power imbalances and domestic violence or its equivalent.
Using an arbitrator affiliated with FAMLI allows parties the freedom to engage in a streamlined process where a lawyer can act as both mediator and, in the event that some or all issues are not successfully resolved in mediation, can then be arbitrated by the same person. A blended process such as this has several advantages:
- There is a cost-savings to using the same lawyer to facilitate a mediation, then arbitrate any remaining issues if necessary. The mediator-arbitrator will have a well-developed understanding of the parties and their children’s needs without the parties having to “start over” with a second professional, which almost always means greater financial expense;
- Using a mediation-arbitration is faster than using a traditional court process or using separate mediators and arbitrators;
- Knowing that the arbitrator will make a decision if the parties do not resolve all of their issues encourages parties to make reasonable compromises to reach agreement.
Whether you choose to mediate or arbitrate your family law matter, neither mediators nor arbitrators can provide legal advice to either party, as their role requires them to be neutral and impartial.
Lawyers have an important role to play before, during and after a mediation or arbitration. A FAMLI-affiliated family law practitioner can give you legal advice as you enter and participate in mediation, provide legal advice when a mediated agreement has been reached, and draft all documents that need to be filed in court, such as the documents required to process a divorce, or a final court order based on the mediated agreement reached.
No person can enter into an arbitration process without first obtaining independent legal advice, and participating in screening for domestic violence. Arbitrators affiliated with FAMLI may also require the parties to also have counsel throughout the process, as any award made by an arbitrator will be binding on the parties as soon as it is made.
All counsel affiliated with FAMLI practice primarily in the area of family law, and often have training in mediation and/or arbitration; while FAMLI recommends that all persons entering into mediation or arbitration have their own lawyer throughout their dispute resolution process, at minimum parties should receive legal advice before entering mediation and will require independent legal advice before formalizing a mediated agreement.
Family Therapists and Parenting Coaches
Family therapists and parenting coaches can be invaluable as parties navigate their family law matters. Receiving emotional support during this difficult time can help parties make better decisions for themselves and their children.
Parenting coaches are qualified therapists who assist parties to work together more cooperatively as co-parents, focusing on skill-building in areas such as communication, managing different parenting styles, and making parenting decisions in ways that support children living in two homes.
Some professionals can, after meeting with children, present the voice of the child during mediation or arbitration.
Family therapists or coaches affiliated with family hold professional or advanced degrees in marriage and family therapy, social work or psychology and are regulated by their own professional bodies; some are also mediators affiliated with FAMLI.
Frequently Asked Questions
Manitoba Justice – Family Law
Services and information portal with the Province of Manitoba, including helpful publications:
Parent Information Program: For the Sake of the Children
This program is offered free of charge and provides very helpful information to parents. This program is mandatory for all people engaging the court system in Manitoba where parenting arrangements are an issue: