MEDIATION

Mediation is one way for family members to resolve their own conflicts during and after separation. The Mediator is an impartial and neutral third party who has no decision-making power. The Mediator’s role is to help the participants clearly define the issues in dispute and to shape the communication process so that a rational discussion can take place allowing the parties to voluntarily reach their own mutually acceptable settlement of the issues.

Mediation is a cooperative problem-solving process where a neutral lawyer assists the parties to a dispute in clearly defining the issues in dispute and reaching agreements that account for everyone’s needs and interests.

The mediation process works like this:

  • The parties (and counsel, if counsel-assisted) meet with the Mediator in an informal office environment or on a video conferencing platform (like Zoom)

  • Most meetings will involve both the parties, but separate meetings may, if necessary, be called between the Mediator and one of the parties

  • The Mediator explains the mediation process to the participants and once the process is understood and agreed to the Mediator collects the information necessary to understand the issues

  • The Mediator guides the communication process so that everyone has a chance to be heard. The Mediator will help the parties define an agenda and the issues will be discussed one at a time and various solutions will be explored so that the best possible agreement can be reached. The Mediator cannot give legal advice to the parties but may provide the parties with legal information respecting the state of the law in the area of dispute. The Mediator may offer suggestions and help parties develop options to resolve the issues

Mediation sessions typically occur in one of two ways:

  • when the Mediator works directly with the parties, the sessions will occur once weekly for a period of approximately an hour and one half. The mediation process will often occur over more than one session.

  • when counsel are involved, a one-day session is typically scheduled of up to eight hours. Most counsel-assisted mediations conclude in one day.

All communications, correspondence and information exchanged by the parties is confidential and privileged. It follows that should the mediation process fail, nothing said or done in any of the mediation sessions may be used in evidence in a Court proceeding.

The goal of the mediation process will be to reach a final agreement on all outstanding issues. If such final agreement is reached, then the Mediator will reduce the agreement to writing (either “Minutes of Settlement” or a “Separation Agreement”) and the parties will each be provided with a copy of the Agreement. If the Mediator is working directly with the parties, each party will be strongly encouraged to review the Agreement with an independent legal advisor before signing it. In this way, the parties are better assured that any agreement reached is fully consistent with their independent legal rights and obligations.

The mediation process can be applied to the resolution of almost any form of dispute. Typically, upon separation the issues to be resolved will include, parenting arrangements, division of matrimonial property and maintenance. An agreement reached in mediation, drafted by a lawyer and signed before independent solicitors is as fully binding on the parties and enforceable as an agreement reached in any other fashion.

Typically, the cost of mediation is shared equally between the spouses. Where this is not possible other arrangements can, in some circumstances, be made.