“Evaluations” in the Context of Family Law Mediations
Family law matters – particularly those involving issues of custody and access or spousal and child support – can be painful and stressful, not to mention leave long-lasting emotional scars upon the parties involved. When the dispute plays out in a courtroom setting, parties also have to deal with substantial financial repercussions. That’s why some Ontario family lawyers suggest alternatives to protracted litigation, such as mediation or arbitration.
Mediation involves appointing an objective and neutral third party to guide the opposing sides of a dispute or claim towards resolution. In family law cases, a mediator assists both parties in reaching an equitable settlement on contentious issues. Arbitration, on the other hand, involves appointing a third party to make a binding decision on the case.
Within mediation, couples may choose to undergo a process known as “evaluation,” which was the subject matter of an interesting article in The Lawyer’s Daily this August. The author, Lorne Walfson, refers to evaluations in mediation as a “controversial” but sometimes “effective tool to break an impasse when traditional mediation techniques have been unsuccessful.”
An evaluation may focus on the legal case as a whole, or on specific issues hindering the resolution of a case. In either scenario, the process involves a third party expressing an opinion “on the likely outcome or value of a legal claim or defence” if it were to be adjudicated, or litigated in court.
When evaluation is effective, it changes one or both of the litigants’ minds regarding disputed facets of the case. This is precisely why Ontario family lawyers turn to mediation in the first place: to help opposing sides of an argument take a sober, realistic look at their contention\us issues, and hopefully, reassess their options.
Or, in Wolfson’s words: “When parties or counsel hear that a knowledgeable, neutral person – after hearing the facts and arguments – disagrees with their predictions of victory, they are forced to consider what the evaluator has seen that they have not.”
However, the use of evaluations in the mediation process is controversial. Some mediators see it as insufficiently impartial, while others consider it an effective tool to reaching a resolution. Judicial evaluation, wherein a judge plays the role of the neutral third party, causes similar rifts in opinion.
Mediators run the risk of exasperating differences in opinion in cases where evaluations center around the bitter elements of a family law dispute. When one side feels unfairly criticized or believes their position is not being adequately considered, they may become more stubborn and resistant to compromise.
When mediation is successful, it offers a cost-effective and relatively painless alternative to resolving differences in the courtroom.
If you or someone you know is engaged in a family law dispute, contact the Ontario family lawyers at Nanda & Associates today to find out how our experienced legal team can help. Over the years, our lawyers have helped Ontario families resolve their disputes and move on to happier chapters in their lives.