Family mediation is just one of the processes available to separating couples to resolve the issues that arise on the breakdown of a marriage or common law relationship.
When couples separate, they need to sort out the many aspects of their matrimonial or common law relationship. These include custody and access arrangements, child and spousal support, financial considerations, equalization of property, and payment of debts. The high emotions of separation, the intervention of new partners, and the feelings of other persons involved, including children and extended family members clouds the skies that lead to settlement.
With the right process individuals can resolve their issues and move forward with their lives. But choosing the right process can be difficult. Much of the advice received comes from many places including family, friends, new partners, fellow workers, and the Internet. Individuals caught in this situation are often in a high emotional state and vulnerable to poor advice.
Some people try to do it themselves in an attempt to avoid professional help altogether and the associated costs. Even if an agreement is reached, it may be incomplete or otherwise lack the essential ingredients of a binding contract. In the event of further dispute, the agreement may be unenforceable or even set aside by the Court.
There are definitely cases that require the Court’s intervention for resolution. The choice of litigation usually results in increased emotional conflict and increased financial costs. In between the choices of “do-it-yourself” and litigation, there are numerous ways to reach an agreement. One of these is family mediation.
People going through separation want three things:
(1) To avoid conflict,
(2) To get it over and on with life as soon as possible, and
(3) To do it as cheaply as possible.
Family mediation is a process by which couples can and do reach agreement quickly and at comparatively low cost. With the mediator’s assistance, couples are able to have constructive discussion that most times leads to an agreement. Unnecessary conflict is usually avoided.
Mediation is receptive to parties needs. Initially, the mediator will address the concerns of lawyers for one or all parties and to ensure that the lawyers provide input as to what issues need to be resolved and how they can assist the mediator. In some cases, the lawyers will participate directly in the mediation session. The lawyer’s role is to assist and advise his or her client rather than to advocate. mediation with counsel can be a highly focused, efficient, and effective means of reaching quick resolution.
Many couples chose to go through mediation without lawyers. The mediator will advise each party to have independent legal advice during and at the conclusion of the mediation and definitely before an agreement is signed. The mediator will determine whether or not the couple is suitable for mediation. There will be individual meetings with the spouses to ensure that there are no power imbalances which would make it difficult for one or the other party to handle his or her own negotiations. The mediator will then have joint sessions with the spouses. The mediator’s will be a neutral facilitator assisting the couple to have constructive discussions with the hopes that it will lead to an agreement on all of the issues. The mediator helps the couple deal with each issue and to ensure that all issues are addressed. If a settlement can not be reached in the first session, the mediator prepares a memorandum of understanding outlining what matters were discussed and where agreements, tentative or otherwise, were reached.
When all parties agree which issues need to be resolved, the parties and the mediator will prepare a separation agreement. Where the parties have lawyers, the parties may have the mediator provide a memorandum of their understanding to the lawyers who can then prepare the agreement. In either case, the parties should have independent legal advice before signing the separation agreement.
Family mediation has many advantages. The parties participate directly in the negotiation. Active listening is encouraged. The parties express what is important and what needs to be in an agreement to make it work. The parties have an opportunity to have a full voice and to be heard and understood and validates feelings which rarely happens in other processes. Issues that might never be heard in other processes can be addressed. The parties’ direct participation in the negotiation and resolution of the issues means that the agreement is likely to be a lasting and reliable resolution. The parties learn that despite their differences, they can learn to reach agreement on substantial areas of dispute and that if future problems arise, they will be able to come back to this process to settle differences. The success rate for family mediation is high. More than 80 percent of all couples who choose family mediation reach an agreement that settles all of their issues. The costs involved are generally far less than the costs involved in any other process.
Family mediation allows for input from other professionals to help deal with particular issues including counseling to resolve access issues or the determination of children’s wishes, qualified appraisers to provide values for assets subject to equalization, and the involvement of someone with financial expertise. The mediator assists the parties choose the outside services best suited to the couple’s particular needs. Instead of extra costs and greater conflict, the couple in mediation can employ outside assistance collaboratively and efficiently.
Family mediation is not the only choice, but for most couples it is the best choice. Each party participates in the mediation and help mold the final agreement reached. Mediation produces results quickly, inexpensively and allows couples to deal with their issues calmly and with dignity.
Adapted from an article of Robert D. Hammond