The decision to end a marriage is never easy, whether you’ve been together for a few years or a lifetime. Once a couple separates, they need to figure out the best option for legally ending their marriage and sorting out the various financial and parental issues.
One way is through litigation, but that’s often an expensive and protracted process, especially now with family courts so backlogged. Another option that’s growing in popularity for a number of reasons is alternate dispute resolution, such as mediation or collaborative family law.
After you separate, there are a variety of issues on which you and your former partner will have to address, including the possibility of financial support, how to care for your children, and how you will divide your assets. Reaching an agreement outside of court benefits families in several ways:
At Morgan and Philips, our team of family law lawyers are settlement-focused, which means that, wherever possible, we advocate for a non-adversarial approach to resolving the conflicts associated with ending a relationship or a marriage.
Mediation is a far more adaptive process than litigation, allowing parties to custom design a resolution that meets their family’s unique needs. The mediation process can also move much faster than other routes to settlement. Because people communicate with each other directly, you can quickly identify areas of agreement, and the mediation can focus on generating options to resolve the main issues in dispute.
Changes to Canada’s Divorce Act that came into effect in March of 2021 require divorcing spouses to try to settle their conflicts through a family dispute resolution process rather than through court proceedings.
“The new, but limited duty to try alternatives to court exemplifies the broader changes to the Divorce Act, in preserving flexibility while stressing children’s best interests,” reports the Globe and Mail.
The trend toward mediation and working it out amicably is especially advantageous for couples with children, according to Laura Wasser, a U.S. divorce attorney to such high-profile clients as Angelina Jolie and Kim Kardashian.
“Letting some guy in a black robe decide your future and your kids’ future is not the best way to go, especially now our courtrooms are so congested as a result of underfunding and all the cases coming in as result of the pandemic,” Wasser said in a recent interview with The Guardian.
Family mediation involves a two-step process:
Step one: The mediator helps you and your spouse reach an agreement on the issues arising from your separation. The terms you agree to are set out by the mediator in a document called a Memorandum of Understanding (MOU).
Step two: Once the MOU is created, each spouse should have it reviewed by their own lawyer, who will provide independent legal advice as well as a formal legal opinion on the terms of the agreement. If everything goes smoothly, the parties’ lawyers will use the MOU to create a final separation agreement.
It’s important to point out that the family lawyer you choose to provide you with independent legal advice should be supportive of the mediation process or any progress you make in negotiations could go off the rails.
Mediation isn’t necessarily appropriate in every circumstance. It requires commitment on the part of both parties, as well as honesty and a willingness to work together to resolve differences. If one spouse in on board but the other is using mediation as a way to hide assets or negotiate in bad faith, a successful outcome becomes increasingly difficult or unlikely.
Another important factor to consider before mediation is whether there’s a power imbalance in the relationship. Some people see mediation as a way of manipulating their spouse into accepting an unfair and unreasonable settlement by appearing to be co-operative.
When I first meet with a couple, I’m looking at the underlying dynamics of the relationship, which includes screening for domestic violence and other forms of abuse that might impede our ability to reach a fair agreement. Also, if one party has undiagnosed or untreated mental health issues, mediation may not be the best route.
Choosing the right mediator is an important first step, but where do you begin? Many people offer mediation services, but not all are family law lawyers or are trained in mediation techniques, both of which are specialized skill sets that can set your family mediation up for success.
One of the advantages of working with a mediator who is also a lawyer is that you can be confident that you’ll be able to rely on the terms of your agreement. Mediators who are not well versed in the ever-changing field of family law, or who do not keep up to date with changes to legislation and new case law, may unwittingly include terms in the agreement that are unenforceable or expose the agreement to being challenged or even invalidated at a later time. Once a separation agreement is signed, it can be extremely difficult and costly to change the terms later.
Here are some guidelines to help you find the right mediator for your family:
Understand the specific issues you want to resolve: Different families face very different issues when separating. Some couples struggle primarily with financial issues, while others are faced with challenging issues as they contemplate co-parenting their children as newly single parents under separate roofs. Mediators who are also lawyers have the unique skill sets required to help negotiate all of these issues in a mediation process. If a co-parenting plan is the goal, lawyers who are trained in mediation can assist by generating options unique to the needs of each family. Similarly, if one spouse owns a business, make sure the mediator is experienced in handling cases, which involve the legal format by which complex assets are divided.
Determine if they’re a good fit: While legal skills are crucial, it’s also important to choose a family mediator with emotional intelligence. Often in mediation, intimate details are discussed, so it’s important to work with a mediator with whom you feel comfortable. Even the most amicable divorce can be stressful and emotional; an empathetic mediator who takes the time to explain the process and answers all your questions will serve your interests.
Ask about training and experience: At Morgan and Philips, our accredited mediators have extensive training in family mediation and years of experience, both as family lawyers and mediators. We are sensitive to the stresses and challenges facing our clients and offer the support and guidance you need to arrive at a successful mediated settlement.
A family mediator who is also a family lawyer can explain your legal entitlements and obligations and will assist by generating options for the issues where you and your spouse don’t agree. For example, if you’re at odds over selling the marital home, a mediator who is a family law lawyer can clarify legal norms and provide legal information for the parties to consider when making their own decisions on how they wish to resolve the issue.
Cases involving disputes over property and pensions are some of the most complex issues to mediate; these cases require a mediator with deep legal expertise and knowledge of the relevant laws. Wading into these types of issues without a solid understanding of the law can be a recipe for disaster.
A successful mediation begins with a positive mindset and a clear but flexible vision of your goals. Parties who realize the best results through a mediated settlement come to the table with an open mind, a willingness to listen and a commitment to the process. Despite much of what we see in pop culture, divorce isn’t about winners and losers. It’s about sorting out your issues so you can move on to the next phase on your life, financially and emotionally intact.
As a family mediator, my goal is singular: to help clients settle their case as efficiently and effectively as possible. To each mediation, I bring my years of experience, skill and knowledge of family law to help clients arrive at fair, balanced and respectful resolutions.
If you’re considering family mediation and would like to know more about the process, I’d love to hear from you.