Read my comments on ownership in the case of neither party being biologically related to the embryo in question
People often ask me why I believe in mediation. Why I mediate. I believe in mediation because, in many cases, it is a superior process to litigation and results in better outcomes for individuals and families.
Couples going through a separation often feel powerless. Circumstances in their personal lives have gotten to the point where it is time to say goodbye to a significant other. Sometimes this is by choice, other times it is foisted by one party upon the other. Whatever the reason, separation leads to major changes. Life is no longer as the couple knew it. The law takes over. Rights and obligations begin to dominate the landscape.
Whether the “leavor” or the “leavee”, separated individuals frequently feel the future is out of their control. I believe mediation changes that. Rather than allowing lawyers and judges to decide, it puts the power right back where it should be: with the separating couple. Mediation is about self-determination. It gives the couple back the ability to direct their lives in a way that makes sense to them. They are the ultimate decision-makers.
Mediation allows for settlements outside of the strict parameters of the law. Maybe the way the law would divide property does not work for this particular family, for example. In mediation, the parties can decide to do something else, something creative and tailored to their circumstances. As long as they both agree, the world is their oyster.
Mediation can be educative. By participating in the mediation process, parties learn (or relearn) how to effectively communicate with each other. How to express their needs and wants. How to really hear the other person. How to deal with conflict in a healthy way. How to abandon the need to win and, instead, how to be able to work together to reach a mutually satisfactory resolution. These skills will serve the parties well as they go forward. This is particularly true in the case of parties with children, who have a long parenting road ahead of them. Through the mediation process, parties can learn how to co-parent successfully, which can only benefit their children.
Mediation is co-operative. Litigation is, by its very definition, adversarial. There is a winner and a loser. Losers not only do not get the result that they want but, in many cases, they also pay the other side’s costs. Mediation is future focused. The parties are working towards a new reality and a new relationship. Who did what to who is far less important than what is going to happen going forward. Conversely, litigation relies on what has happened in the past to predict the future. Old hurts are magnified. Mediation, in most cases, is a private process. Other than the settlement that might result, what happens in mediation stays in mediation. Litigation is a public airing of very private issues.
Mediated settlements are more enduring. Parties are more likely to stick to the terms of a deal they crafted themselves. Also, since the win-lose mentality has been abandoned, both sides feel good about the resolution. If everyone believes the settlement is fair, they are more likely to abide by it.
Timely and Cost Effective
Finally, mediation is cost-effective and timely. Litigation often results in delays. Matters take months, if not years, to resolve. That is a costly undertaking. Mediation is a less expensive alternative and one where the parties can usually come to a final agreement in a much shorter period of time.
What is the Alternative
This is not to say that I think litigation is a terrible alternative in all cases. There are some situations in which it is entirely appropriate. But I do think mediation is a better alternative in many cases, for the reasons outlined above. I find acting as a mediator and watching the genesis of a new way of being for couples and families to be very fulfilling.
If you have questions about this article, or mediation generally, please do not hesitate to contact me. I would be pleased to chat with you about whether mediation might be appropriate in your particular circumstances.
I am pleased to be joining the Ontario Bar Association’s ADR executive for another year. This team is creative and dynamic. I am excited to see what the year brings. For example, be sure to check out the Mediation Bootcamp program I am co-chairing September 24, 2018. Interesting topics and great speakers! Registration is open now.