In the realm of Divorce Mediation/Arbitration, the approach taken by the Mediator can significantly impact the outcome of the process.
“Muscle Mediation”, a term coined to describe a Mediator’s assertive and proactive role, presents a compelling argument to instigate a settlement where the spouses’ positions are diametrically opposed and need a Mediator with gravitas.
This is to be compared to the more passive alternative in mediation such as ‘Facilitative Mediation’.
Muscle Mediation challenges the notion that settlements in Divorce Mediation should be the outcome of self-determination. Critics argue that the pressure to settle may compromise self-determination, yet proponents of Muscle Mediation contend that a more assertive stance ensures parties appreciate the risks, losses and costs of not settling their case in mediation and the spouses truly understand their respective weaknesses.
A word of caution: Not every case should be co-opted into this type of mediation. Those considering this approach must accept the risks with the benefits.
A mitigating factor in Muscle Mediation is the screening process. This requires the Mediator to assess each case for factors such as domestic violence, coercive control, unequal bargaining power, substance abuse and mental health issues. By doing so, the Mediator aims to protect vulnerable spouses and create a more tailored and secure environment for dispute resolution.
Muscle Mediation distinguishes itself by employing a “stick and carrot” approach. The stick is used by the Mediator to warn the spouses of the potential consequences of refusing settlement, emphasizing the court’s intervention as the less favourable alternative.
Simultaneously, the carrot is used by the Mediator to incentivize the spouses to accept a less favourable outcome than anticipated in exchange for a full and final resolution of all issues. The Mediator may also refer to the ancillary benefits of settlement such as insulating the children from further conflict and preserving a relationship with the former spouse.
Unlike the adjudicative approach employed by judges, Muscle Mediation favours a hybrid facilitative and evaluative approach, combining mediation techniques with expert evaluation by a subject matter specialist. In this way, the Mediator can bring the spouses to a more sustainable and robust agreement, in stark contrast to the adversarial model inherent in the court system that produces at least one loser.
Critics of Muscle Mediation argue that it is unsuitable for cases involving domestic violence, diverse ethnicities, cultural sensitivity, or language barriers.
Proponents of Muscle Mediation counter these arguments, emphasizing that this model offers a private, tailored solution, safeguarding victims from facing their abusers in court and allowing parties to choose a Mediator attuned to their specific cultural and linguistic needs.
As for the ethics of Muscle Mediation, the role of the Mediator is defined in Ontario’s Rules of Professional Conduct as follows:
“5.7-1 A lawyer who acts as a mediator shall, at the outset of the mediation, ensure that the parties to it understand fully that:
(a) the lawyer is not acting as a lawyer for either party but, as mediator, is acting to assist the parties to resolve the matters in issue; and
(b) although communications pertaining to and arising out of the mediation process may be covered by some other common law privilege, they will not be covered by the solicitor-client privilege.”
In its commentary, the Rule is that a Mediator is not acting as a lawyer and is not giving legal advice, but rather legal information to the spouses during the mediation process. This does not preclude the Mediator from giving information on the consequences of a failed mediation. The Rule requires the lawyer-mediator to encourage the spouses to seek separate independent legal advice and representation concerning the terms of settlement and the draft contract.
In conclusion, Muscle Mediation emerges as a proactive, assertive and tailored approach to divorce settlements, especially in high conflict matters. By incorporating the combined elements of coercion and collaboration, Muscle Mediation aims to guide couples toward sustainable, mutually agreeable resolutions.
Steve Benmor, B.Sc., LL.B., LL.M. (Family Law), C.S., Cert.F.Med., C.Arb., FDRP PC, is the founder and principal lawyer of Benmor Family Law Group, a boutique matrimonial law firm in downtown Toronto. He is a Certified Specialist in Family Law, a Certified Specialist in Parenting Coordination and was admitted as a Fellow to the prestigious International Academy of Family Lawyers. Steve is regularly retained as a Divorce Mediator/Arbitrator and Parenting Coordinator. Steve uses his 30 years of in-depth knowledge of family law, court-room experience and expert problem-solving skills in Divorce Mediation/Arbitration to help spouses reach fair, fast and cooperative divorce settlements without the financial losses, emotional costs and lengthy delays from divorce court.
Editorial note: This article was first published in June 2025. It is republished here for reference.
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