Mediation is a voluntary out-of-court process of decision making, using the assistance of a neutral third party, or Mediator. The objective of Mediation is to explore and develop solutions in a respectful manner, rather than allocate blame. Unlike Judges who are constrained by the law, in Mediation spouses can be extremely creative in tailoring a plan for their unique family.
Focussing on Solutions
In order to be successful in Mediation, or any negotiation, spouses must be reasonable and child focussed. This can sometimes be difficult in the aftermath of a separation and that is where a Mediator can assist in keeping focus.
Intake Interviews and Domestic Violence Screening
Prior to commencing Mediation, spouses should expect to participate in an Intake and Domestic Violence Screening Interview. The purpose of the interview is to understand what issues are important to the spouses, to explain the Mediation process, and determine whether the case is appropriate for Mediation.
Spouses should be relatively equally able to participate in Mediation. Sometimes, this requires accommodations. This may include Shuttle mediation, where the spouses remain in separate rooms and the Mediator moves between them. Shuttle Mediation may be appropriate in cases where significant conflict exists.
Mediation will not be suited to relationships marked by abuse or power imbalances. It is meant to be a safe space for spouses to speak freely about the issues that are important to them without fear for their safety or the discussions being used against them in a subsequent proceeding.
Spouses will enter into a Mediation Agreement with the Mediator, setting out the issues to be discussed, terms of withdrawal for both the spouses and the Mediator, and fee structure.
Mediation may either be “open” or “closed”. The definition may vary slightly between Mediators, but in either case the particulars of the issues discussed will remain private. Only the terms the spouses have agreed to will be disclosed.
Memorandum of Understanding
Any agreement reached in Mediation will be summarized in a Memorandum of Understanding. This is not a legal document, but will be provided to a spouses’ lawyer both for the purpose of obtaining legal advice and to be converted into a Separation Agreement.
Independent Legal Advice
While many Mediators are lawyers, their role is not to provide legal advice. Spouses are encouraged to obtain independent legal advice throughout the process. This allows them to make informed decisions throughout the process and less likely to change their minds after Mediation has concluded.
In the event Mediation is unsuccessful, spouses may retain a professional privately to decide the issues for them, or an Arbitrator. Spouses will sign an Arbitration Agreement in which they agree that the decision of the Arbitrator will be binding on them. The Arbitrator may then make a decision after hearing submissions from the spouses, which decision may be incorporated into a Court Order.
Your Family is Worth it
Mediation is one of the most worthwhile investments you can make in your changing family. Even for those who are skeptical, your family and children are worth the amount of time and expense to try. Spouses have nothing to lose for the effort, but everything to gain.
Valerie L. Brown is a trained Mediator and Associate Member of the Ontario Association of Family Mediators.