Dear Readers,
Welcome to our beautiful hot summer! Today’s blog is directed to parties who are in Divorce Court, and also to their lawyers.
For those of you who are in the middle of a Court Process and feel like you’re getting nowhere, you may have the option of trying Mediation, alongside the Court process.
QUESTION: Can you switch to Mediation when you’re in the middle of Court Proceedings and feel like you’re getting nowhere?
SCENARIO: Bob and Carol are in the midst of bitter Court Litigation in their Divorce. Their trial date is fast approaching, and their lawyers – Ted for Bob and Alice for Carol – have told them that they require huge fees for trial.
QUESTION: Can Bob and Carol try Mediation in an attempt to resolve their issues – and thereby avoid trial – while in the midst of their Court process?
ANSWER: Absolutely yes! In fact, this may be the perfect time to do this, as will be shown by my real-life example below. (Note, all names have been changed for confidentiality.)
Bob and Carol were told by their lawyers that their Divorce trial was scheduled for the following week! “As such, they were on the proverbial eve of trial!” Ted and Alice – the parties’ lawyers – suggested that the parties try Mediation in the hopes of settling their matters outside of Court and thus avoid going to trial.
The parties’ lawyers retained me as the Mediator.
To describe my background, I am a Senior Family Law Lawyer and have practised Family Law for over 38 years. I also act as a Mediator in Family Law matters.
The role of a family law lawyer and family mediator are two separate roles, which require that I must put on a different hat for each process. (Click to see “The Three Hats that the Mediator Must Wear in the Mediation/Arbitration Process”.)
The Mediation was scheduled for a full day at my office: Bob and Carol, together with their lawyers, Ted and Alice, and myself.
The day began with aggressive back-and-forths between the parties’ lawyers. Clearly the lawyers didn’t like each other – as often happens in protracted and adversarial Family Law matters!
As the Mediator, I used my Process Expertise to bring down the volume in the room. For example, I established the important ground rule that no one interrupts when a party, or their lawyer, or the Mediator is speaking.
One lawyer was clearly more experienced and more assertive than the other. I used my Mediation skills to balance the power dynamics in the room.
We broke for lunch mid-day. On entering the lunchroom, to my surprise, Bob and Carol were sitting beside each other, peacefully eating their lunches!
This was the clue that I needed to solve the case!
On returning to the Mediation room, I asked Bob and Carol to speak directly to each other. My questions were crafted with the purpose of eliciting from the parties – as I had seen in the lunchroom – that they still had love and commitment for each other. Indeed, each told us that their hurt and pain at the breakdown of their long marriage – compounded by the adversarial Court Proceedings – had been a major stumbling block and escalating factor in their Divorce.
By the end of the day the parties settled the vast majority of their issues, and the balance soon after. Bob came to my office to pay the balance due and thanked me, telling me that he and Carol were very pleased with the results. In fact, he told me that Carol was making a special dinner for him that evening to celebrate their settlement!
Conclusions:
It’s never too late to try Mediation as a way of resolving the issues in a Matrimonial Matter, even when one is in the midst of Court Proceedings. In fact, it was precisely the timing of Bob and Carol’s matter – on the eve of trial – that propelled the parties to engage in a constructive Mediation process, in which they actively tried to settle their case under the pressure of the imminent trial date (called “BATNA” in Mediation).
Mediation provides a forum for parties to discuss the important non-legal aspects of their Divorce. This includes discussing each spouse’s interests, wants and needs, plus the emotional components in the room – the ‘elephants in the room’ that can often derail settlement if not addressed by the mediator.
Putting these non-legal aspects on the table will greatly assist in the parties reaching a settlement satisfactory to both.
In contrast, in the Court process, the trial Judge must consider only the law when making her decisions. At a European conference I attended several years ago, the chief Judge of the particular jurisdiction told us that she envied the fact that, as a Judge, she was not party to the non-legal issues that were often so fundamental in what was going on in the Divorce case, while we Lawyers and Mediators were.
Note that, if the Mediation process did not work for Bob and Carol, they still had the recourse of going back to Court, which had been running parallel to the Mediation and not withdrawn. Often Family Law Lawyers have Mediation and Court running side by side in their matters. The judge will usually grant a stay (adjournment) of the Court Proceedings if both parties wish to try mediation
The moral of the story is that – whatever process separating parties decide to use – Court, Collaborative Process and/or Traditional Negotiation – they are free to put aside their process and try Mediation. The Mediation may well – with Court Proceedings hanging over them – propel them to try to settle, and result in a settlement in the Mediation, as it did in Bob and Carol’s case.
Needless to say, for Bob and Carol, trying Mediation resulted in their saving the substantial fees that they would have had to pay their lawyers for a Court Trial, plus the unpredictable outcome of a Family Law Trial (the subject of another article!).
For those of you – and your lawyers – who are in Court and interested in trying Mediation as an alternative and hopeful way of solving the case, feel free to contact me at anne@annefreed.com or telephone (416) 368-0700.
Until next time!
Anne
Anne Freed holds a BA (Honours Sociology), JD (Juris Doctor, Law Degree), Master of Laws Degree (LL.M.) in Alternative Dispute Resolution (ADR), Advanced Training in Mediation, Arbitration and Collaborative Practice, Certification in Collaborative Practice, as well as over 38 years’ experience in the practice of Family Law, Family Mediation and Arbitration. Anne also is a Certified Family Law Mediator. In addition, Anne is a Certified Specialist in Family Mediation (FDRP Med) and OAFM Accredited Family Mediator (AccFM).
© Anne E. Freed, July 2025
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