Negotiation & Mediation

Negotiation & Mediation in Ontario

Effective negotiation is crucial in settlement discussions pertaining to family law matters. It is for this reason that Stanley Family Law places significant emphasis upon the application of effective negotiation tactics when in the process of drafting a contract or agreement with opposing counsel. We strongly believe that thorough preparation is the key to obtaining a successful resolution. We thus begin the process by reviewing the parties financial statements in depth. This allows us to acquire a thorough grasp of all relevant issues that must be drafted into the agreement. We then proceed by laying out the strengths and weaknesses of the case and advise our client of same. We do so as objectively as possible as we want our client to understand exactly what is involved in order to come to a settlement. From this point forward we diligently negotiate our clients proposal in a steadfast manner and try to resolve the matter without need to pursue dispute resolution alternatives. There may occassionally be the need to attend a four way conference in which all parties attend and lay out the issues that are to be negotiated. This can be beneficial as at times all that is needed is face to face communication between the parties so that issues can be thoroughly discussed and resolved. Following negotiation one lawyer prepares the draft agreement and once complete sends it to the other for review and approval.

If negotiations fail what we often recommend is for our clients to pursue mediation in an attempt to settle all outstanding issues. Mediation is a method of dispute resolution whereby the parties retain an indepentant third party professional to assist them in coming to an agreement on all outstanding issues. The mediators role is essentially to lay out both the facts and the issues so that he or she may discuss from their perspective how the case would unfold if it were to go to court. Mediators are highly valuable in such situations as they provide their opinion based upon their expertise and practical experience. This is made possible given that mediators have generally accumulated numerous years of experience in family law and have a thorough grasp of the law and how it is applied.

Mediations can be either open or closed sessions. Open mediation refers to a mediation session in which the mediator prepares and files a report based upon what had transpired. Technically, any admission or communication is reported and is admissible in a future court proceeding. Closed mediation on the other hand refers to a mediation session in which the mediator simply prepares a report at its conclusion and states that an agreement was or was not made. In this case any evidence admitted or communication made cannot be used in a future court proceeding. It is thus extremely important that your lawyer canvass both methods with their client as there may be advantages and disadvantages depending upon the circumstances.

Not every situation is ideal for mediation as mediation requires committement from both parties to want to settle the dispute. It is therefore important that if mediation is pursued that the parties be emotionally prepared, that they have disclosed all financial particulars, that they are motivated to reach an agreement, and that they ensure any hostilities remain dormant during the actual mediation session so that a resolution can be agreed upon. On the other hand, mediation is not advisable when there is a power imbalance between the parties, when one party is overwhelmingly dominant, when one party has not made full financial disclosure, when the parties are inflexible in regard to certain issues, when there is a lack of committement on behalf of one of the parties, or when one of the parties will not take responsibility for the outcome.