Mediation and COVID -19: Pick your Mediator Carefully

Mediation is a form of alternative dispute resolution that is strongly recommended by the Courts in Alberta.  Parties to litigation, including divorce matters, have an obligation under the Rules of Court to engage in alternative forms of resolution with the aim of settling matters without the need for the courts.  However, such a requirement does not come at the loss of an individual’s right to be represented by legal counsel during such dispute resolution.

It is the standard and common practice in Calgary for legal counsel to attend at family mediations with clients, particularly when such matters engage complex issues of matrimonial property, pension valuations and divisions, and support for spouses and children.  Additionally, it is far from uncommon for parties to be represented by legal counsel during mediations involving parenting disputes. This is so regardless of whether one party is a self-represented individual.  Simply put, one party’s choice to self-represent is not, and cannot, be the trigger for denying the other party their right to the assistance of legal counsel during mediation.

Why is this important?

At a time when financial uncertainty is rife, many couples may be faced with the prospect where one or both of them are unrepresented and are looking to attend mediation. While this is a possibility, the role of the mediator has to be understood. A mediator cannot provide legal advice and a mediator cannot advise one party or the other if an agreement is not fair. A mediator is trained to help parties reach a resolution; not to guide the outcome. It is for this reason that mediators are not required to have any specific training in the area they are mediating- i.e. matrimonial property law, divorce law, or the federal Child Support Guidelines.

When a family law lawyer is conducting the mediation, this is not an issue for divorcing couples, but when the mediation is being conducted by an individual who is not trained in this extremely complex and ever-changing environment, this can cause difficulties as certain areas cannot be mediated away, such as a party’s obligation to pay child support for a child.

When attending mediation, parties look to reach agreements. However, those agreements have to be fair. If they create an imbalance, the party who is disadvantaged has to be aware of the imbalance, and not be under pressure to reach an agreement that is prejudicial to them. Simply put, they have to be aware of any rights they may be waiving by signing.

What if the mediator won’t allow me to be represented?

If a mediator refuses to meet with you because one party is represented by counsel, our advice is simple: RUN! Or at the very least, proceed with the utmost caution. Should there be any risk of imbalance or the concern that the mediation is being used improperly, the role of the mediator is to control the process and guard against such concerns.  Further, such a concern assumes that any lawyers present will attempt to take advantage of the self-represented litigant; lawyers have a very serious ethical obligation to not engage in such practices. 

However, lawyers also have an obligation to represent our clients’ best interests, and if that requires asking questions of an opposing party in the course of mediation, then it is a lawyer’s role to do so. Mediations are meant to be transparent processes where both parties are able to explore all issues without fear or reprise, in an informal manner.  This is particularly important if one party is unrepresented, in order to advance the mediation and foment resolution. Frequently, a party who has not had the benefit of advice on the law may advance positions that are quite simply, unsustainable. In fact, when we are retained we advise clients of the importance of not taking positions early in the process without legal advice to confirm if the position is supportable in law. Failing to follow this simple advice is what often leads to extreme conflict, as one party is obstinate that their outcome is correct when it is not one the courts can approve.

There is a specific reason that mediations are considered “without prejudice”.  It is a venue for the parties (or the mediator, perhaps) to learn of the give/take, concerns, and offers of the parties.  The “without prejudice” nature of mediation makes it the most appropriate venue for the transmission and discussion of such matters.  Without offers, concerns, and the issues of the parties being discussed there is very little point of mediation. 

Why is legal advice important?

In the more complicated financial areas involving property, pensions, and support, the assistance of legal counsel with knowledge and expertise of the law in these areas will often be needed.  Without such, there is the very real risk that the parties may arrive at a tentative agreement on these issues, only to be advised that the settlement is prejudicial to one party, and not informed by the law.  With the presence of legal counsel, even if only for one party, such issues and concerns may be addressed as they arise, rather than arising after the fact and potentially creating a situation whereby the parties have wasted an entire day as well as significant financial resources on a mediation that fails to resolve the matters properly.

At Mincher Koeman, we would advise any individual engaged in matters relating to a divorce to retain legal counsel even if only on a limited basis to understand their rights and obligations in full. This way, even if that person then decides to attend mediation alone, they do so with full knowledge of their rights. Even if the client is working with another family law mediator who is skilled at protecting against imbalances, a mediator cannot give legal advice and can only halt the mediation if they are aware that the parties are making an agreement which would not pass court approval.

Should I be allowed a lawyer to attend mediation if my spouse is self-represented?

Simply put, yes.  The importance of counsel to assist clients with complex matters is crucial. If a mediator will not let you proceed if only one party is self-represented then choose another mediator.

The courts have, on numerous occasions over the years, spoken at length about the very frequent power imbalance in personal relationships and how such an imbalance is often abused by spouses/partners during relationship breakdown and subsequent litigation. A process that potentially facilitates the more powerful/abusive partner in cutting out the protective safeguard of legal counsel during mediation is potentially extremely harmful to that party.  If a mediator states they can control and protect against this and that counsel is not required, then the same argument should apply to address any potential power imbalance created by the existence of a lawyer on one side and not on the other. Any imbalance in the latter case given the professional and ethical obligations of lawyers to not take advantage of self-represented individuals can be easily addressed whereas in the former case, there are no such restrictions on an abusive or overbearing spouse from acting in such a manner.

The Supreme Court of Canada was very wise in their recognition that the assistance of legal counsel is a critical component of combatting power-imbalances that are often found in intimate relationships and abused during the dissolution of such relationships.  It is for this reason that the Supreme Court of Canada has mandated that spousal support agreements require Independent Legal Advice to ensure that one party is not being bullied or taken advantage of.  Our own Provincial Legislature recognized the need for lawyers to take on this protective role in matters of matrimonial property agreements and that is why agreements that deviate from Part 1 of the Matrimonial Property Act and the now Family Property Act are not enforceable without each party having a lawyer endorse a section 38 Matrimonial Property Acknowledgment. 

Mincher Koeman is a firm known for thinking outside the box and for obtaining resolution using whatever tools are available to achieve the best outcomes for our clients. Now more than ever is a time for unconventional thinking to move matters towards resolution. Contact our office today by calling us at 403-910-3000 or contact us online.