The Mediation Process
Family mediation is a co-operative problem solving process in which a neutral third party, the mediator, assists separating and divorcing spouses to work out their own, mutually acceptable, terms of separation.
Even though the conflict between the parties may be very emotional, it is expected that the parties will come to mediation with an honest desire to reach a settlement that is fair to both and workable in practice. The participants in mediation must be prepared to be flexible in moving away from their initial positions to seek solutions which meet as many of their mutual interests as possible.
Mediation is voluntary, and either party is free to withdraw from mediation at any time during the process. In certain circumstances, the mediator may terminate the process, when he or she believes that mediation is not appropriate or useful for the parties.
Issues for Mediation
Separating spouses, whether married or unmarried, can resolve a wide variety of issues through the mediation process. These include: the ongoing arrangements for the care, control and parenting of their children; obligations for the support of dependent spouses and children; possession of the matrimonial home; division of their property. Even spouses who already have a separation agreement or Court Order, may consider mediating when they wish to vary certain provisions established in previous agreements.
Other issues suitable for family mediation include conflicts between adolescent children and their parents; intergenerational conflicts; disputes between family members who are beneficiaries of an estate; situations in which one family member is suing another in Civil Court for monetary damages; and negotiating the terms of Marriage Contracts and Cohabitation Agreements.
Situations which are not appropriate for mediation are those in which there are severe power imbalances which impair the ability of the parties to negotiate fairly with each other, and where there has been a history of domestic violence.
The Mediation Procedure
Generally, the mediator will first meet with both parties individually for 1 1/2 hours, followed by joint session(s) lasting approximately 2 hours each. The parties’ lawyers are rarely present for the mediation sessions, but will be involved in the background, advising the parties throughout the mediation process. They are invited to contact the mediator at any point. If the parties reach an impasse in mediation, the lawyers may be invited to attend a final session together with their clients. Occasionally, the mediator may wish to meet individually with each of the parties. Either party may also request an individual meeting with the mediator. Sometimes, in order to resolve the dispute, it may be necessary to have the input of third parties, such as new spouses, grandparents, or even the children themselves. The involvement of such persons will be discussed with the parties and agreed in advance.
When the parties reach a tentative agreement, the mediator will summarize the terms of their proposed agreement in the form of a written memorandum of understanding or Mediator’s Report. The parties are not bound to any proposed agreement arising out of the mediation process until such agreement has been reviewed by their independent solicitors and signed by them.
The Role of the Mediator
The Mediator is an impartial third party neutral who is not biased in favour of either party and who has no personal interest in the final outcome of the dispute. The mediator is a facilitator who assists the parties to negotiate their own terms of settlement. The Mediator does not act as an advocate or legal counsel for either party to the dispute. At most, the mediator may provide neutral legal information to the parties and may flag issues for them to discuss with their independent lawyers. Finally, the mediator is not a Judge. He or she will not decide for the parties how the issues brought to mediation should be resolved. Nor will the mediator tell the parties what is fair. The mediator will assist the parties to reach their own decisions based on their own individual ideas of fairness.
The Role of Independent Lawyers
Each of the parties is expected to seek independent legal advice with respect to their legal entitlements under the applicable laws. This is so the parties can make informed choices in mediation. In certain cases they may choose to depart from their strict legal entitlements, based upon the unique facts and circumstances of their own case. It is important that this be done in full knowledge of their legal rights.
The role of independent counsel is to advise the client of his or her legal rights and obligations, to act as “coach” for that party during mediation process; to advise on various issues as they arise in the course of mediation, to review the memorandum of understanding or report prepared by the mediator, and to implement the terms of any such agreement such as real estate or share transfers, roll-overs of Registered Retirement Savings Plan, changes in beneficiary designations processing the divorce etc.
The role of counsel is to advise the parties. The role of the parties is to make their own informed decisions, using input from their independent legal counsel as one of many factors in the decision making process.
Confidentiality of Mediation
In mediation, the parties seek to reach a settlement based on full and frank disclosure of all relevant information between them. Therefore, it is important that all discussions take place in mediation on an “off the record” or “without prejudice” basis.
The mediator, unless otherwise agreed in writing by the parties, will not voluntarily disclose the substance of any of the discussions which take place in mediation, nor the content of any documents prepared or exchanged during the mediation process. Since mediation is intended to be a confidential process, each of the parties is expected to sign a waiver agreeing not to call the mediator to testify in any subsequent legal proceeding between them.
Although the mediation process is intended by all parties to be confidential, the mediator cannot absolutely guarantee such confidentiality. The mediator may, under certain circumstances, be required by law to disclose information, such as suspected child abuse or potential danger or harm to one of the participants or testify on public policy grounds.