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Mediation: The unregulated profession | Gary Joseph

Tuesday, June 22, 2021 @ 8:14 AM | By Gary Joseph

Gary Joseph %>
Gary Joseph
Recent amendments to family law legislation have led to an increased emphasis on negotiated settlements. Mediation, while already prevalent in family law, will become more so. Yet mediators are not regulated in any meaningful way. Mediation courses abound and anyone can become a mediator. The Law Society of Ontario (I continue to hate that name but the counterculture succeeded in stripping us of the moniker: members of the Law Society of Upper Canada) regulates lawyers and paralegals. The Ontario government amended legislation to govern family law arbitrators but yet nothing meaningful exists to regulate mediators.

In many communities, poorly trained “mediators” are plentiful. Uninformed participants are often led to “settlements” that are unfair and contrary to legislation. Mediation sessions are at times coercive; there is no screening for power imbalances as is necessary in arbitration. If we are to encourage mediation we should also encourage mandatory training, mandatory continuing professional development (CPD), mandatory insurance and regulation. If not, we risk settlements that have not been determined in a fair manner sensitive to the dynamics of the relationships and consistent with legal principles.

In the Greater Toronto Area we have many fine family law mediators but more that are untrained, unprepared and without the knowledge necessary. Every family lawyer has stories of clients arriving with “separation agreements” signed in “mediation” prepared by a mediator from a download on the Internet. Prepared by a non-lawyer. What are the consequences to those who prey upon the weak, the poor, the uninformed or the victims of intimate partner violence who “settle” in these mediations? Only fully qualified and licensed mediators should be permitted to practice, with strict professional guidelines. This is not about protecting the turf of lawyers or even paralegals. This is about protecting the public.

I only know of family law mediations but recently I had the privilege of participating in a lengthy mediation in Los Angeles (the wonder of Zoom). The mediator was a highly trained professional, trained and accredited, who through a long day wove the parties together to a satisfactory settlement for all. With no disrespect to my many skilled colleagues who mediate, the skills and techniques practised were the like I have not seen. The mediator bridged the gap, ended the very expensive high-end litigation and left all sides happy with the result.

He used mediation briefs received from each party to the mediation that were not exchanged but only shared with the mediator. He used bracketing to place settlement within the accepted bounds of all and he issued a mediator’s offer to finally resolve. It was like watching a fine orchestra leader at work.

After the mediation I chatted with Los Angeles counsel (again a fine impressive group). I learned of the training available to mediators in some U.S. states, some of the regulatory requirements and roles and use of mediators. Again, please, with no disrespect, but we have a long way to catch up. I know this was but one mediation but our L.A. counsel assured me that our mediator was not the best they have.

With apologies to civil and commercial lawyers and mediators, I know not their process or skills, but in family law we can learn a lot in our mediation process. We can start with the Ontario government passing legislation to regulate mediators. Create a College of Mediators with mandatory registration. Create regulations for screening of all participants in family law mediations. Weed out the untrained and leave the field to the trained. We have some great family law mediators but the public needs the protections described above. If we are to encourage mediation, we need to “up our game.”

Gary S. Joseph is the managing partner at MacDonald & Partners LLP.

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