"Can we go to mediation if we are already in Court?"
YES! It is never too late to settle! In fact, Family Court judges encourage litigants to attempt mediation.
I have been involved in many cases, both as a lawyer and as a family mediator, that commenced with the involvement of the court but ended up settling in family mediation. But why would they start with a court case in the first place? Why did these parties not try mediation first? These are commonly-asked questions and here are a couple of possible reasons:
Initial counsel for the parties were not settlement-oriented ~ regrettable if that was the case. Many family law lawyers still default to a court proceeding, which essentially means they start a court case as soon as they are retained by their client. In my view, that is not modern family law. In fact, both federal and provincial legislation now expects lawyers to actively talk with their clients about alternative methods of dispute resolution (which include mediation), and to encourage them to mediate where appropriate.
There might have been a short-term issue that required the court’s quick involvement - and the initial issue has now been resolved on an interim or temporary basis.
Here is another commonly-asked question: what do I do if I am already involved in a court case but I want to try and settle all the issues on a global basis? The first step is to signal to the other party (through their counsel, if they are represented) that you are interested in family mediation. You will need the other party to agree to the process because family mediation is entirely voluntary. Provided they agree, you will work together on selecting the mediator, and also on agreeing to other elements of the mediation process, including how the mediator will be paid (by whom and in what proportion), whether the mediation will be open or closed, and when it will take place (and in what format - virtually or in person).
When I wear my family mediator (as opposed to family lawyer) hat, I encourage the parties to make offers to settle, in advance of the mediation session(s), if possible. That usually makes the discussions and negotiations more productive ~ it helps each side to know the other side’s positions on the issues - counter-proposals can then be formulated, and so on.
Here is another commonly-asked question: what happens to the court case if we settle on a global basis in family mediation? Once the settlement is confirmed in writing (and there are several options for doing this), the court is advised of the settlement, and once a family court judge signs off on the settlement (in other words, approves the terms), the court case is finalized. There is one more item, of course, if the separated parties were married - the court also grants a divorce.
SO: ~ it’s never too late to settle. There actually are cases, truly, that settle the night before a trial of all of the issues is set to begin.
If you are at all interested in family mediation, look into it further, learn more about it, ask your lawyer questions or visit our Family Mediation & Parenting Coordination website, where we have included a lot of information about both. And consider me for the role of your Family Mediator.
©AJJakubowska