Frequently Asked Questions About Mediation
Divorce is among the most emotionally difficult periods in a person’s life. I take a hands-on approach to helping parties move on with their lives in a private, supportive, and respectful manner.
Q. What is Mediation?
A. The Canadian Bar Association defines mediation as, “the intervention into a dispute or negotiation by an acceptable, impartial and neutral third party who has no decision-making power, to assist disputing parties in voluntarily reaching their own mutually acceptable settlement of issues in dispute”.
Simply put, mediation is a voluntary way of resolving disputes assisted by a mediator. It is a process designed to brainstorm and arrive at a settlement that fits your specific needs with minimal conflict and delay at a fraction of the cost.
Q. Why Mediation Instead of Court?
A. As a Certified Family Law Specialist, I can say without a doubt that family law litigation should be the method of last resort. The reason being; costs. Not simply financial costs, which are often substantial, but the emotional and time costs to both you and more importantly, your children.
Each party meets with the mediator while in the comfort of an office, not a packed court room. Each party has an opportunity to openly communicate in a safe and supportive environment. Each person gets a personal approach and the attention they deserve to have their voice heard and respected during the process. They are not simply a number on a court docket.
Same result faster. Statistically, 99% of family law court cases settle prior to going to trial. However, by that time the parties have been embroiled in the court process for upwards of three years and have likely each spent many thousand dollars that they can’t possible recoup. Mediation is a superior form of settlement that occurs at the outset of separation, not years and thousands of dollars later. It’s the same result in less time, for less cost, in every conceivable way.
Q. What Happens If Mediation Breaks Down?
A. If one or both parties feels mediation isn’t working or would prefer going to court or having discussions exclusively through counsel, they can end the mediation at any time.
However, if the parties are unable to reach an agreement, they will find that mediation has given them a much better understanding of the issues and the perspective of the other party.
Q. What Issues Would Mediation Resolve?
A. Mediation is suitable for almost all family law issues including but not limited to:
Child/spousal support (ongoing and retroactive)
Determination of income
Division of assets/equalization/valuation
Sale of property/reimbursement for sole payment of joint expenses
Q. What is the Cost of Mediation?
A. The parties may share the cost of mediation equally between them or arrive at an arrangement where one party pays a greater share of the cost. As a mediator I charge by the hour. Contact us to know more about fees.
Q. Who is an “Accredited Family Mediator?”
A. In Ontario, a mediator isn’t required to obtain an accreditation. However, an Accredited Mediator has been suitably trained in mediation theory and practice and is insured in accordance with the laws of Ontario. They also have complied with the province’s requirement to complete a lengthy and supervised internship with a senior and experienced mediator to ensure they are properly qualified. They are bound by Standards of Practice and ethical requirements and regularly upgrade their knowledge and skillset each year. Non-accredited mediators are more restricted in their practice and not permitted to work with some organizations. Credentials are important, an Accredited Mediator ensures that he or she has the requisite knowledge and ethical practices to properly mediate your family matter.
Q. Who Gets to Decide to Mediate?
A. It’s a joint decision. Both you and your former partner must decide to mediate. It’s well known that separating couples often don’t see eye to eye and are sometimes at each other’s throats. It’s also not uncommon for there to be a high degree of animosity with neither party wanting to “give” the other anything more, but whether you like it or not, many joint decisions will have to be made in order to finalize the relationship, especially with respect to property and children. Deciding to mediate is the first smart joint decision made by separating parties and puts them well on the road to obtaining a fair and reasonable agreement.
Q. We’ve Decided to Mediate – What Next?
A. The parties are required to sign an agreement to mediate which outlines the specifics of the process and respective requirements. They will decide to have either an open or closed mediation and the degree of documentary disclosure. Most parties choose closed mediation as it’s private and confidential. This means that neither party or the mediator may give evidence in a legal proceeding about what was said during the mediation. Open mediation is neither without prejudice nor confidential. It’s understood that either party or the mediator may give evidence in a legal proceeding about what was said in the mediation.
In most cases each party will be required to provide at least a financial statement and potentially other documentation to ensure discussions are open and canvass all the issues properly. Once an agreement is reached, the mediator may draft a mediation agreement based on your discussions. I always recommend that each party have the mediation agreement reviewed by a qualified family lawyer and drafted into a legally binding separation agreement. Your respective lawyers may attend the mediation but it’s not required, nor are the parties required to have a lawyer other than to obtain independent legal advice after the mediation agreement has been reached thus saving cost. Your mediation agreement isn’t binding until it is transcribed into a duly executed a separation agreement. After which, the parties can choose to file it with the court, however, that isn’t necessary. So long as the agreement is duly executed, the terms are legally binding and enforceable.
Successful mediation requires that both spouses be willing to make concessions on the issues being discussed. However, unlike trial, which a number judges will tell you is a lose-lose situation irrespective of the result – mediation is designed to be a win-win situation based on integrative compromise tailored to each party’s primary needs and concerns. There’s a lot of choice and flexibility involved when arriving at an agreement. The process isn’t adversarial, it’s an organized collaborative process focused on mutual interests.