When Mediation Is Not a Good Idea

Mediation works when both people can participate safely, honestly and freely. When one of those conditions is missing, mediation can produce an unfair agreement or even put someone at risk. In those cases, another process such as lawyer-led negotiation, arbitration or court is usually more appropriate.

Family violence or coercive control. When one spouse has experienced any of the following from the other, they cannot negotiate freely:
- fear
- threats
- intimidation
- isolation
- financial control
They may agree to whatever keeps them safe, and sitting in the same room can itself put them at risk. Adjustments such as shuttle mediation (the spouses stay in separate rooms or join separately online, and the mediator moves back and forth between them carrying proposals, so they never have to face each other) can sometimes help, but where safety cannot be assured, mediation should not proceed.
One spouse refuses to disclose or is hiding assets. Mediation depends on full and honest financial disclosure. If one party does any of the following, any agreement will rest on a false picture:
- won’t provide documents
- undervalues a business
- moves money out of reach
- hides income, such as cash earnings or unreported work
- transfers assets to family members or a new partner
- runs personal expenses through a company to lower their apparent income
- doesn’t disclose accounts or property held outside Canada
One party lacks the capacity to negotiate. Any of the following can leave a person unable to understand options, weigh consequences or advocate for themselves:
- serious mental health crises
- active addiction
- cognitive impairment
- overwhelming grief
An agreement signed in that state is unfair and vulnerable to being set aside. Mediation may need to wait until the person is able to participate, or proceed only with strong support such as a lawyer.
Urgent protection is needed. Some situations can’t wait for a negotiated process:
- a risk that a parent will take the children out of the province or country
- a spouse draining accounts or selling property
- an immediate need for support or exclusive occupancy of the home
These call for court orders first. Mediation can still follow once the urgent issue is secured.

Daniel Mandelbaum

CERTIFIED FAMILY MEDIATOR – JUSTICE INSTITUTE OF BRITISH COLUMBIA

I discovered that I was born to mediate and collaborate, as I was – and still am – the individual that my friends and family call on to resolve any conflicts that may arise.