Throughout life, many people will encounter a family situation that calls for professional help and expertise that they do not possess. For instance, a person may need assistance to resolve a family conflict, help negotiate a workable child-focused parenting arrangement, or conclude other arrangements arising from separation or divorce. There are several options available in these circumstances, including court litigation, collaborative family law and mediation. In this blog, I will address some frequently asked questions on mediation, a practical and cost-effective approach to resolving family issues.
What is mediation?
Mediation is a process where you meet with a neutral person who assists you in your discussions to reach an agreement. In family law matters, most mediators are experienced family law lawyers who have received specialized mediation training. The mediator facilitates the discussion, provides information, canvasses options and assists in the negotiations. The mediator is a neutral facilitator, not your or your spouse’s lawyer. The mediator does not decide; you and your spouse do. Most mediators will draft the separation agreement following successful mediation meetings. Each party then takes the proposed separation agreement to their own lawyer for independent legal advice. Your lawyer will explain to you your legal rights and obligations under the terms of the proposed Agreement.
How does it differ from other approaches to arriving at a settlement/resolution?
In mediation you are in control of the process and the outcome. In court, you do not control the process or the outcome as the Judge decides. Mediation is also different from the collaborative family law process. In the collaborative family law process there is no mediator. Instead, each spouse is represented by a specially collaboratively trained lawyer, and the parties, together with their collaborative lawyers and possibly other professionals (financial or parenting experts), negotiate an agreement as a team.
What are the advantages of mediation?
There are many advantages of mediation to negotiate a separation agreement. You and your spouse choose your mediator and you control the outcome of the process as you negotiate and decide on the terms of your agreement. Contrary to court proceedings, successful mediations are a respectful process where you and your spouse cooperate to find solutions which best meets your and your children’s needs. Mediations are also private and confidential. Although successful mediations generally require several meetings and you will need to obtain independent legal advice from your own lawyer who will explain your rights and obligations under the proposed separation agreement before it is signed, the process is much faster compared to Court litigation, which can take years. As a result, the financial cost of mediation is much less than the cost of protracted litigation.
Is mediation for everyone?
No resolution is possible without a dialogue. Mediation will require that you and your spouse communicate or work together to find solutions. Mental health issues, abuse during the relationship or power imbalances may render mediation an unsuitable option. Because mediation is a voluntary process, a willingness to cooperate, compromise and reasonably discuss issues to find solutions is key to success.
Can my lawyer participate with me in the mediation?
Yes. However, to save costs, many clients go to mediation without their lawyers. If you have a lawyer, you can seek his or her advice before or after mediation sessions. Being prepared with clear objectives, and open mind and relevant documents (financial information, etc.) will increase the likelihood of a successful outcome at mediation.
How do I find a mediator? Should I look for certain qualifications?
Ask a friend, relative or colleague who has gone through mediation for a referral. You can also contact a family law lawyer and ask for a referral to a mediator.