Mediation is a method of resolving disputes without court involvement. It can help couples who are separating settle disagreements and resolve outstanding issues without confrontation. Despite its benefits, many couples don’t even consider mediation, often because they are not aware of it as an option. The following introduction will help you assess whether you should consider mediation for your separation.
How does mediation for separation work?
In mediation, a neutral and independent third party, called the mediator, will assist both you and your spouse or partner reach agreement on a settlement. The mediator does not take sides but will guide both of you through the negotiations necessary to reach an agreeable outcome.
Mediation does not replace legal advice. Once you’ve reached a settlement, you will need to hire a lawyer to put your terms into a legally binding separation agreement. Your spouse will have to retain his or her own lawyer to receive independent advice.
The Benefits:
Mediation is a cost-effective process. Rather than pay for two lawyers to engage in negotiations, in mediation, you will both be working with one mediator.
Mediation is a confidential process. It does not require you or your partner to attend court or file court documents that may be accessed by the public.
In mediation, the timeline is flexible to meet your needs. You and your partner determine the outcomes. This is especially beneficial if you have children. Instead of having a judge determine how and when you have care of your children, you and your partner work out the agreement.
Is Mediation Right for You?
Mediation is voluntary. That means both you and your partner have to agree to using the process. If you’re not in agreement, mediation is not an option. This does not automatically mean that you have to use the court process to resolve your issues, but you may need a process with more built-in supports such as collaborative family law.
Mediation also requires a commitment to good-faith negotiations. This means both of you are resolved to settling your issues in this process by being reasonable and flexible. There is no use of threats to force settlement or relying on a power imbalance in the relationship to intimidate the other person into a settlement.
Finding the Right Mediator
Not all mediators have equal training and professional backgrounds. Minimally, the mediator you chose should have some professional mediation training, preferably in family mediation. The right mediator will have specialized training in communication and negotiation techniques. It is also important for the mediator to provide a safe space for good-faith negotiation. The mediator creates safety by ensuring the parties address any imbalance of power and that communication is respectful. A safe space relates to the ability to explore settlement options without fear of reprisal.
Some family law lawyers are trained in family mediation. In this case, you will have the benefit of a very specialized set of skills. Because mediators must remain neutral, a lawyer providing mediation cannot give legal advice to you or your spouse. However, a mediator who is also a trained family law lawyer can provide you with legal information helping you both make informed decisions in the process. His or her legal background may also help generate more options for resolving your matter. Mediators who are lawyers may also be able to draft your separation agreement. Note that you will still both have to obtain independent legal advice before signing the agreement. Both partners using the same lawyer would be a conflict of interest.
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By Chau Tran
If you think mediation is right for you or would like more information about this cost-effective process, contact me at ctran@evansfamilylaw.ca.