Canada, “mediation can be arranged or ordered by consent in most provinces, but only in Winnipeg and Edmonton can couples be ordered to attend at least one meeting with a mediator”.1060
10.9The Ontario Children Law Reform Act 1990 gave power to the court to order mediation with respect to custody and access disputes.1061 Section 31 of the Children Law Reform Act 1990 provides: “upon an application for custody of or access to a child, the court, at the request of the parties, by order may appoint a person selected by the parties to mediate any matter specified in the order”. The mediator must consent to the appointment and to filing a report to the court within a specified time. The children can also be seen by a mediator.1062 Section 3 of the Ontario Revised Family Law Act 1986 makes similar provision for child support, custody, access, and property.
Open and closed mediation
10.10The parties have a choice whether they prefer open or closed mediation. In open mediation, discussions are not confidential and a mediator can be summonsed to give evidence. The terms of the mediation agreement are disclosed to the court. For those issues that are not resolved the mediator can report on the process and the obstacles to the agreement. Recommendations about the resolution of these issues can also be included.1063 The parties are entitled to a copy of the report.
10.11If the mediation was closed, then anything said in the sessions cannot be given in evidence except with the consent of all parties. The terms of the agreement can be disclosed but not the mediation process nor any recommendations made. If issues were not resolved that fact is simply stated without going into why there was no resolution. The court has power to make orders for the payment of the mediator’s expenses.
1060 Ibid at 3.
1061 R.S.O. 1990, c 12, s 31.
1062 Landau et al, supra at 27.
1063 Ibid at 168.