This is a common question. Some mediators may know legal issues, but they’re professionally trained to be impartial and can’t give advice to either party. So the most effective use of the mediator, the mediation process, and the lawyer is to make sure you know your legal rights. You can do this by retaining a lawyer and taking the time to obtain very specific legal advice on your own issues, rather than just a general consultation.
It isn’t always possible to remember all the legal advice you’ve received, and in mediation, additional issues may surface unexpectedly due to changes in circumstance. If you’re not sure of the legal implications of these new circumstances, or how to mediate a resolution, make another appointment with the lawyer to discuss those issues. You can then return to mediation knowing your legal position or the legal alternatives available, which will allow you to move forward in the process.
If part of the mediation includes a resolution of financial issues such as support and property division, it’s most effective to complete the Financial Statement and obtain all necessary valuations of property with your lawyer’s help. This way, you can be reasonably comfortable with the figures you and the mediator will be using. Sometimes your partner may present unclear financial information, and it would again be in your interests to review your partner’s financial information with your lawyer. This helps the mediator progress with resolving the financial matters. Although this may seem like a “duplication,” it’s very cost-effective in the sense that you’re not paying your lawyer at an hourly rate to negotiate for you — this is what you and your partner will be doing with the mediator at a (usually) lower price while sharing the cost. Your lawyer, however, will have “armed” you with enough knowledge regarding your legal position to prevent any unfair bargaining to occur.
Helen Brooks is a family lawyer practicing in Whitby since 1986. A former police officer, she is currently in the process of becoming certified by the Ontario and Canada Family Mediation Associations.