“My spouse wants to mediate. I’d rather take him to court, because I feel that most of our property and custody of our kids should be rightfully mine. What’s the solution?”
It depends on what you really want. If you want a process that determines your legal rights and obligations, and if you have the emotional ability to withstand an adversarial process and the financial ability to pay for it, go to court. But be prepared: your expectations may be unrealistic, and you may come out the other end feeling more angry and resentful than you were going in.
If you’re willing to participate in a process that de-escalates rather than aggravates conflict and focuses on what each spouse and the children need in addition to legal rights and obligations, you may want to consider mediation. Mediation is a process that allows each of you to make informed decisions in a fair and balanced way. It allows you to explain to each other why you want what you want; you may surprise yourselves and reach an agreement easily. Research shows that parents who negotiate parenting plans in mediation generally experience less conflict in parenting their children than do those who go to court.
But this will only work for you if your goals include reducing conflict and reaching an agreement with your spouse. If your goal is something else, mediation may not be consistent with your sense of entitlement. Mediation requires an ability to put aside your “positions,” work hard on finding solutions that you both consider to be fair and in the best interests of your children, and to “go easy” on each other while you do so.
If you are determined to “win” at any cost, or if you are unwilling or unable to consider what your spouse wants and needs, mediation may frustrate and anger you more, because it is asking you to do something you cannot do. Before making your decision, take a hard look at your own willingness and capacity to put aside your fear and anger, and consider seriously what kind of outcome you really want.
Hilary Linton, B.J., LL.B., LL.M. (ADR) is an accredited family mediator (OAFM) and the principal of Riverdale Mediation, which serves Toronto and southwestern Ontario.