MEDIATION BASICS

If you and your spouse or partner cannot come to an agreement on your own, and if you do not want to go through the court process or to fight, a mediator may be able to help you communicate better with each other and reach a reasonable  agreement. Mediators are neutral third parties who can help you work out an agreement on a variety of issues related to your separation and / or divorce,  including support payments, the division of property, and custody of and access to your children. You should review any agreement you reach during mediation with a lawyer before you sign it. For mediation to make sense for your situation, you must be willing to work with your spouse and negotiate, with them That means that you must feel safe meeting with your spouse in order to discuss your issues. You must also be able to communicate your needs and be able to really listen to your spouse’s concerns. The very first thing that you need to do is be able to agree on the same mediator who will work with both of you to decide on how best to handle the major divorce issues which confront you.Mediation is not right for everyone, particularly in cases where there has been violence or abuse.

The Benefits Mediation

  • Mediation is voluntary. Parties are not legally bound to participate and may leave at any time.
  • It allows parties to work out their own solution rather than have a decision imposed on them by the court. The solutions are better because you have greater input on the terms of settlement.
  • People are more likely to stick to an agreement which they reached through mediation as opposed to one that has been imposed on them by the courts.
  • Mediation is quicker and cheaper than the court system.
  • If children are involved, it keeps the focus on their best interests.
  • Mediation is voluntary. Parties are not legally bound to participate and may leave at any time.
  • It allows parties to work out their own solution rather than have a decision imposed on them by the court. The solutions are better because you have greater input on the terms of settlement.
  • People are more likely to stick to an agreement which they reached through mediation as opposed to one that has been imposed on them by the courts.
  • Mediation is quicker and cheaper than the court system.If children are involved, it keeps the focus on their best interests.
  • Mediation helps you to avoid destructive divorce proceedings which will inevitably have an impact on your children.
  • It may reduce future conflict by improving parties' communication and problem solving skills.
  • Mediation is less adversarial and less formal than court.
  • Unlike going to court, it is a private and confidential process and is therefore, can produce decisions which are more flexible than those imposed by a court.

Mediation How Do You Choose a Mediator

You and your spouse must agree on who the mediator will be. While mediation does not have to take place with a trained mediator it should. It should also be conducted by someone that either both the clients and/or their lawyers feel is objective and knowledgeable with respect to the issues to be mediated. The cost of mediation is usually split evenly between the parties.

It is important that you ask questions to ensure that the mediator is right for your situation. A qualified mediator will usually have an advanced academic degree, as well as documented training and certification in mediation. It is helpful if the mediator also has a designation from a provincial or national mediation association guaranteeing that they have completed a rigorous training and screening program and has met that association's criteria for membership. You should also ask questions about the mediator’s preferred style. Some mediators believe that their function is to listen, rephrase things and, generally, support the participants in whatever they say and only gently prod them towards agreement. Other mediators may push the parties aggressively to reach an agreement.  It can be dangerous to retain an overly- assertive mediator because, the parties might end up with an agreement which is really the medaitor’s agreement and not their own. All participants in mediation should explore the candidate-mediator's style with the candidate during the period of time that the mediator is selected - but before starting the mediation itself.

What to Consider When Choosing a Mediator:

  • Type and amount of family mediation training relating to your issues
  • Professional background (for example: law, social work, education, psychology)
  • How mediation fees are set and how they can be paid
  • Times and dates that mediation sessions can be scheduled

The Mediation Process

The mediator’s role is to assist parties to reach a fair and lasting settlement. As the mediator is a neutral party, he or she will not take sides or make decisions for the parties. You should consult with a lawyer prior to commencing mediation. Some people bring their lawyer to the mediation meetings with them. Mediation consists of a series of settlement meetings between you and the mediator. These meetings take place whenever all three parties are available. The length of time required to reach a resolution will be dependent on the number and types of issues which need to be mediated, the degree of conflict between you and your spouse, and the degree of communication and cooperation between you as well. Prior to the mediation, the lawyers or their clients prepare a summary of the facts of their case, the issues in dispute and the clients’ positions on those issues.In mediation, lawyers tend to be involved more as advocates for their clients rather than facilitators of settlement. Mediation can take place without lawyers being present, and while nearly all mediations take place without the lawyers being present, the lawyers are in the background advising their clients. Following the mediation the mediator will prepare a report on the outcome. This report will often include the mediator’s suggestions and sometimes even a draft or signed agreement between the parties. Typically, the lawyer acting for one of the parties will draft a separation agreement based on the mediator’s report.

If You Can't Reach an Agreement

If, after giving mediation a fair try, you have not been able to reach an agreement, ou can still go to court. Normally, after a session or two of mediation, the mediator will be able to tell you whether he or she believes that the mediation will be productive. You'll be able to see this yourself. If you opted for closed mediation, everything that happened or was said during the mediation will remain confidential, so the court will never find out about what had been discussed.

Please note that the information is general in nature and not intended to be a substitute for legal advice. If you are concerned about how to approach mediation following the breakdown your marriage or common law relationship, please contact a lawyer. You can get free information about how to select and retain a lawyer by getting a copy of the FREE REPORT offered at the top right-hand corner of this page. Do not sign a separation agreement without independent legal advice.