Mediated Settlements And The Law

mediation and the settlements of law

By Dave Penny, President of the OAFM

Originally published in the newsletter of the Ontario Association for Family Mediation

Another important issue, which came up during discussion at the Guelph Region meeting, has a number of implications.


I addressed it to a judge:

When spouses wish to enter into a separation agreement through mediation, and have the document to represent their feelings regarding all aspects of their collective lives, and in such cases request that I facilitate and record their agreement, is there any jeopardy to anyone as a part of the process? By this I mean: (a) Does this process bar the spouses from litigation at a later date should the need arise; (b) Does the agreement represent a domestic contract under the Family Law Act and is it legal and binding if the couple choose not to seek legal advice for whatever reason; (c) What if any jeopardy is the mediator placing himself in by performing this task on behalf of the spouses?

His honour replied by saying that no process is ever barred from litigation if good cause is shown.


Two important principles were expanded upon further in discussion:

  1. If a wife and husband enter into an agreement and there is no impropriety involved, and they have made a full and frank disclosure to each other on all related matters, the agreement can and should be recognized as legal and binding.
  2. If, during the process of transcribing the agreement, the mediator insures that no form of legal advice is offered by the mediator, and all parties are aware that the mediator is not acting in the capacity of anything but a facilitator, regardless of his or her professional background, and the spouses are advised to seek legal advice throughout the process and are cautioned of the possible problems that may arise if legal advice is not sought, the responsibility for the outcome of the proceedings rests on the spouses themselves.

It becomes obvious that these two principles can cause confusion – for mediators, lawyers and clients. The first principle enunciates the fact that any persons can enter into any legal contract without obtaining legal advice. The second principle highlights the fact that “legal advice” by definition can only come from lawyers. Individuals are always free to draft, and sign, contracts with or without mediators or lawyers. However, if a mistake is made, the contract is still binding because ignorance of the law is never an acceptable defense.