Finding creative solutions with neutral assistance.

What is it?

Family Mediation is a family-focused decision-making process whereby parties work together with their neutral Family Mediator to find creative solutions to their divorce issues while avoiding court. The parties commit to focusing on the future and to providing full disclosure of all relevant information throughout the Process. Mediation is not limited to divorcing spouses – you may be unmarried, you may be still living together and want to draft an Interspousal Agreement, you may want to draft a pre-nuptial agreement. A mediator can assist you with all these issues.

Whom is it for?

If you agree with the following statements, Family Mediation may be right for you:

  • I want to avoid having the Court decide my future.
  • My children’s needs are my priority.
  • I want focus on the future.
  • I want to reduce conflict between the other party and me.
  • I want a quick and efficient resolution.

If you wish to avoid having lawyers involved in your negotiation process, you will likely agree with the following statements:

  • I prefer to involve as few professionals in the process as possible.
  • I want costs to stay as low as possible.
  • I want to make my own decisions, without being assisted by a lawyer’s opinion during negotiations.
  • I believe that I can make myself heard and understood without assistance.

How does the process work?

Hire a Family Mediator
Each party must meet with the Family Mediator independently prior to committing to the mediation process. This consultation allows each party to fully understand the Process and to allow the Family Mediator to learn about each party’s perspective on the issues for resolution. The Family Mediator’s role is to facilitate the parties’ discussions and to assist the parties to resolve their conflict throughout the process.

Sign agreement
Before the Family Mediation process can begin, the parties and the Mediator must review and sign a Participation Agreement which commits all parties to the Process and to avoiding court-imposed resolution.

Engage in joint meetings
First meeting: the parties and the Mediator sign the Participation Agreement, identify each party’s interests (concerns, hopes, expectations, assumptions, priorities, beliefs, fears, values, needs), and create a list of issues and priorities for resolution. Usually time permits for the most pressing issues to be discussed and at least a temporary resolution to be put into place until a longer-term resolution can be reached. A “to do” list is created for all parties at the end of each session so that everyone knows what they must do before or for the following meeting.

Subsequent meetings: we hit the ground running at all subsequent meetings. We address each issue identified for resolution in the order as agreed between the parties. Information is exchanged, solutions are brainstormed, and resolution is reached on each issue.

Prepare Agreement/Memorandum of Understanding
Once resolution is reached on each topic identified, the Family Mediator will prepare either a form of Agreement or a Memorandum of Understanding. The agreements reached in Family Mediation are non-binding on the parties until they place their verbal agreements into a legally-binding format. If the Mediator prepares the Agreement, then the parties can take this Agreement to their own lawyer to have it reviewed and signed separately from the other party. If the Mediator prepares a Memorandum of Understanding, then the parties can take this to their lawyer to put it into the form of either an Agreement or a Court Order.

Where role do lawyers play in Family Mediation?

You always have the right to have your lawyer present with you at your mediation session(s) or you may want to consult with your lawyer in between sessions.  Many parties, though, choose to keep the meetings as 3-way meetings including the parties and the mediator alone and simply to discuss the final result with their lawyer at the end.

How long does it take?

Most families average 2-5 sessions at 2 hours per session, which can mean 2-6 months for full resolution. Sometimes parties decide to engage in full-day mediation sessions, which can cause the process to be expedited in many cases. The factors that determine the length can include: level of conflict between the parties, number of issues to resolve, and the time required between each meeting.

What are the possible outcomes?

  • Reduced conflict.
  • Usually less expensive resolution than Court.
  • Time-effective resolution.
  • Foster or improve communication between the parties.
  • More clearly understand differences in opinions.
  • Empower each party to be heard.
  • Make informed and voluntary choices about your future.
  • Focus on the needs and interests of the children.
  • Create an effective and sustainable co-parenting plan.
  • Future dispute resolution becomes easier
  • between the parties.

 

Family Mediation FAQ

▶ What if I don’t trust the other party?

Trust between the parties is not required for the Family Mediation process to work. Rather than trust, it is more important that both parties are willing to come to the table to openly discuss all of the issues for resolution and to provide all of the information on which the parties will rely to make their decisions. If it is a matter of specifically distrusting the other party, there are ways to ensure that the information you are receiving in the Process is accurate and complete and that the agreements that you make are going to be followed by both parties into the future. For instance, to ensure accuracy and completeness of information, the parties can provide a sworn list of assets, debts, income and expenses. If you worry about the agreement being followed, sometimes we can try out an agreement on a short-term or temporary basis to ensure that the terms agreed to are manageable. It can happen that an agreement is made and the parties come to realize that it is not workable in reality; the parties can then return to the Process to revise the agreement to make sure that it’s sustainable.

▶ What if we don’t reach agreement in Family Mediation?

There are times where the Process breaks down. Sometimes, parties have come to Family Mediation after being in a litigation process. If Family Mediation ends without reaching full agreement on all issues, the parties simply return to their lawyers to reconvene the court process. Or, if litigation was not already started then lawyers may need to be hired at this point. As far as what to do with the agreements reached during Family Mediation, The parties have 2 choices: (1) to enter into agreement regarding the terms that continue to be agreeable by both parties, and the remaining issues can be dealt with by the Court, or (2) to abandon all discussions had and agreements reached during the Process and start afresh in a Court system. The initial consultation is extremely important in order to ascertain whether a Family Mediation is appropriate for your family. Your Family Mediator should learn about your situation and ensure that you understand the Process, then assist you to determine your suitability for the Process. This step helps to prevent you from entering into a Process that will not work for you, and may ultimately lead to impasse.

▶ If we already have an agreement regarding division of assets & debts, do we have to open up that topic in our Family Mediation?

Family Mediation is client-directed which means that the parties set the topics for resolution that will be covered. The mediator will assist with creating the list of topics, as sometimes there are elements that have not been finalized in your own agreements outside of the Process. However, if both parties are set on keeping a particular topic “off the table” then that’s ok.

▶ What if the other party won’t agree to Family Mediation?

You have an opportunity to negotiate, and a right to litigate. This means that you can only do Family Mediation if both parties agree to enter into the Process. If the one party won’t agree, then you still have a right to resolution, but it will likely be in the litigation environment. The sooner that both parties learn about the various process options available for divorce, the better. Sometimes, parties will enter into the litigation ring without understanding that there are options such as Family Mediation. Even if the other party has chosen a litigation process, you can still talk to them and provide them with information about the Process; it can’t hurt. However, if the other party is not agreeable to at least meeting with the mediator to learn more about the process, then you cannot use Family Mediation.

▶ What if the other party already has a lawyer? Can we still use Family Mediation?

Yes, even if one or both of you have already retained lawyers, Family Mediation can still be used. You may invite your lawyers to attend each session with you, or you can request that your lawyer stays in the background while the mediation is proceeding. If one or both parties doesn’t have a lawyer yet, you don’t need to retain a lawyer prior to the mediation being conducted. Many parties choose to keep the meetings as 3-way meetings including the parties and the mediator alone and simply to discuss the final result with their lawyer at the end.

▶ Is Family Mediation confidential?

A closed mediation is confidential; an open mediation is not. In a closed mediation, the parties and the mediator sign a Participation Agreement at the start of the Family Mediation process which states that all discussions and proposals made are confidential for use within the Process only. It is not until the proposals for resolution are actually placed into the form of a Separation Agreement, and signed by all parties, that it becomes legally-binding. If the Process breaks down, then all discussion and proposals are set aside, and may not be used in any litigation process that may follow. A judge may order an open mediation whereby the mediator is required to report to the Court about the mediation. Closed mediation is much more common.