Wednesday, September 22, 2010

Musings on Mandatory Mediation in Family Law Disputes

Ontario’s Chief Justice Warren Winkler is calling for compulsory mediation in family law disputes. If Justice Winker gets his way, court will be the last checkpoint and only after family law disputants have exhausted alternative forms of dispute resolution.

While I cannot help but emphatically agree that the litigation process should not be a starting place for parents, soon to be former spouses and anyone else who falls into the “family” law bucket, I do believe that it has it’s place in the process and not always at the end of the road.

Chief Justice Warren Winkler’s hope to map quest mediation at the beginning of the divorce journey is groundbreaking if only to ensure that mediation and alternative forms of dispute resolution are made known and I hope – available, to all family law disputants. This begs questions such as: who is paying for these services and are those providing the services educated, experienced and equipped to deal with the matters presented?

If, in order to be successful, mediation requires the “buy-in” of the participants, is it an oxymoron to mandate mediation? If a disputant is a “window-shopper” and/or not even a prospective buyer, can a skilled mediator turn the disputant into a customer? Can a non-communicative relationship be turned into one that allows for a healthy conversation? Can mistrust result in open and honest disclosure? And what about domestic violence, safety and power imbalances that impact one’s ability to make sound decisions?

While I am all in favor of a presumption of mediation, I am not confident that mandatory mediation is the answer. I believe it is critical that there be a screening process, and perhaps a multi-level approach to care that strongly emphasizes and encourages mediation at a very early stage in the process.

While I am filled with questions about how this “fresh approach” will work and serve the needs and interests of Canadian families, I remain optimistic that Chief Justice Warren Winkler is working on the answers.

- Deborah Mecklinger, LL.B., M.S.W, A.T.C
Mediator and Coach
Deborah Mecklinger is a lawyer, mediator and therapist with a successful private practice in Toronto. She is well known for her work in the areas of divorce, mediation, conflict resolution, and individual, couple and family therapy. Contact her by email at
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