Eric Gossin, a family lawyer in Toronto, answers:
Family law mediation offers the participants a unique opportunity to have a direct say in the result. A qualified family law mediator will, at the commencement of the mediation, assure the parties of his or her neutrality. In order to be effective, the mediator cannot be personally invested in the outcome. It is for this reason that each of the parties will be required to seek independent legal advice before, possibly during, and certainly after the process. Those lawyers will advise their client of the fairness of any settlement agreed upon.
The mediator will not give legal advice but he or she must take the current law into account. The mediator will help identify the issues and will discuss alternative solutions, eventually helping the couple arrive at a settlement. There is one further safeguard that should reduce your concern; a family law mediator is trained to identify and be sensitive to any power imbalance that might exist between the parties.
For example, if there is a history of violence or threats within the household, or there is a sense that one party is threatening another in any way, the mediator is trained to recognize and identify the imbalance in bargaining power. If none exists, or if it can be dealt with effectively by the mediator, and assuming the couple is “mediation ready” from an emotional and psychological point of view, the mediation can proceed. Where there is a power imbalance that cannot be addressed, the mediator is likely to terminate the mediation process until that issue is dealt with.
A client who is concerned with bias should take some comfort in knowing that a properly trained mediator will proceed in this way. For all of these reasons, you need not be worried about a mediator being on one side or another. Mediation can remove uncertainty and greatly reduce the costs of achieving a settlement.