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Family lawyers frequently talk about how mediation can be a cheaper, faster and more private alternative to divorce litigation, but clients can be confused about how the process works practically.
Using a fictional example of Logan and Marcia, let’s look at the inner workings of family mediation. After 12 years together, the couple wants to divorce. While they’re not on the greatest terms, they want to be amicable for their two young children. Marcia’s cousin went through family mediation a few years ago and had a good result, so the couple decided to investigate further.
When Logan and Marcia first came to see me, we discussed the different ways they could move forward to resolve the issues arising from their separation.
By choosing mediation, they’re agreeing to a process that requires them to talk to each other — either face to face or through videoconferencing — while I, as the mediator, guide or help to reframe the conversation. Logan and Marcia want to learn better ways to communicate, problem-solve and work together to resolve their outstanding issues.
Marcia and Logan have agreed to give mediation a try, but they are not sure who to choose to act as their mediator. In Ontario, mediators can be social workers, psychologists, lawyers or other qualified professionals. But it’s crucial to choose carefully — you want someone who is experienced in terms of mediation skills and who also has a solid grasp of legal concepts.
As an experienced, accredited family mediator and family lawyer, I know what lawyers are looking for in a mediated agreement and can provide the proper context and facts to avoid derailing the process.
During my meeting with Logan and Marcia, we review the mediation process to assess whether it’s genuinely going to work for them. They share that they want to resolve matters in a way that will reduce conflict and avoid the time and expense of the court process.
Now that they’re decided to move forward, we sign a mediation agreement stating that I would act as their mediator and set out the terms of their mediation process.
I then have private meetings with each spouse, where they are free to discuss their views on the history of the relationship, the breakdown of their relationship, their children, etc. Through these meetings, I gain an understanding of their ideal outcome in mediation and what they want to focus on in the sessions.
In my conversation with Logan, I discovered he wants to keep the marital home because he would like to avoid further disruption for their children. I also found out Marcia wants to spend summers with the kids because, as a teacher, she and the children enjoy spending time in the summers with her parents at their cottage.
One of the first orders of business will be exchanging financial information — tax returns, pay stubs, notices of assessment, copies of bank accounts and deeds, information about cars, pensions, etc.
In our sessions, we start with the parenting plan. I explain the different options, and we evaluate them together to see what will work best for their family. My role is not to tell them my opinion, but instead, to provide information and guidance, and let them decide for themselves.
I take detailed notes on what they’ve agreed to and put it into wording that will fit within a separation agreement. Then, after every joint mediation session, I send Logan and Marcia a summary of what was discussed, what was tentatively agreed to, and their homework for the next mediation.
Things have been progressing well, but discussions over whether to keep or sell the home becomes a bit heated. We agree that Marcia and Logan will move to breakout rooms, so I can talk with them individually. I keep negotiations going by moving back and forth between the breakout rooms. This is known as shuttle mediation.
We move on to discussing the calculations I have provided to Logan and Marcia, showing them what the law says about child and spousal support and division of their property. Again, I’m not making decisions for them but providing information about a likely range of support and giving them details about the different ways support and the division of their property could be structured.
Although they’ve had a few bumps along the way, Logan and Marcia agree on some terms that they both feel are in the best interests of their children. They agree on terms for Logan to buyout Marcia’s share of their home and also agree to have Marcia spend most of the summers with the kids at her parent’s cottage. Both parties feel this agreement is fair and addresses what’s most important to them.
It’s important to point out that family mediation is a two-step process: Step one is the couple working with a mediator to make decisions together about what they want their agreement to say. Step two involves each party reviewing the terms they agreed to at mediation with their lawyer.
Logan and Marcia both have lawyers who understand what’s important to their clients and generally support mediation. So, after a few further negotiations and tweaks, the agreement is formalized, signed and the parties can move on.
Both Logan and Marcia felt the mediation process was fair — not only to themselves but also to the other spouse. They feel confident that they will be able to resolve parenting issues that come up in the future together cooperatively and know that they can always return to mediation if issues arise that they can’t agree on.
If you’re considering a divorce and would like to explore if family mediation is right for you, schedule a consultation with me here.