Guide to Family Mediation
Family mediation is an informal process where two or more people work with an objective third party, a mediator, to resolve the issues between them on a consensual basis.
1. To Mediate or not to mediate....
Many families go through separation and/or divorce. When spouses, whether common-law or married, decide to live separate and apart, conflicts may arise about how children will be cared for and supported, how the spouses will be supported, or how the property which they have accumulated is dealt with. Many individuals seek to work out these conflicts outside of the courtroom. Some are able to come to an agreement on their own; others may seek the assistance of a mediator.
When deciding to mediate, there are a number of issues to consider:
- Are you both motivated to settle the issues between you?
- Are you competent to state your needs and interests, albeit with assistance?
- Do you understand your basic rights and responsibilities under the law?
- Do you consent to participating in a mediation process?
- Are there power differences - such as domestic violence - which would make it difficult or impossible for one of you to negotiate?
2. What issues are appropriate to bring to mediation?
Families can bring virtually any issue to mediation, as long as all parties agree to discuss it. Common problems that are brought to mediation include:
- the development of a parenting plan for children (custody and access)
- financial support for children and/or spouses
- equalization of assets and debts of the relationship
- disposition or handling of property
- communication and conflict resolution
Many other kinds of disputes may be appropriate for mediation, including parent/child conflict, succession planning, conflict between the adult children of an aging parent. The key is for the participants to agree on what they wish to bring to the table for negotiation.
3. What is the difference between open and closed mediation?
In open mediation, a report based on the mediation can be filed with the court, or the mediator may be subpoenaed to act as a witness against one or both of the parties.
In closed mediation, all communications within the mediation process are confidential, and cannot be used or referred to in court or any other forum.
Joan Sinclair only works in closed family mediation, believing that the participants have the knowledge of their own circumstances and the knowledge to resolve the issues under discussion.
4. What happens when I get there?
Joan holds an individual session with each of the participants at the beginning of the process followed by joint sessions. The participants usually work together, face to face, to negotiate an agreement, although Joan may suggest occasional individual meetings or caucuses. In some circumstances, Joan may work by "shuttle diplomacy", moving between the participants, who are never in the same room.
5. Where children are involved
When there are children, Joan may wish to speak to the children, if their needs form part of the discussion between the parents. These meetings are usually held individually with the children without the parents being present. Occasionally, where an older child is involved, or where the main issue revolves around parent/child conflict, the child will be involved in the joint mediation session. Any involvement of children in the mediation process is done only on the consent of the parents and the children involved.
The focus of the mediation is the needs and interests of the children. People often begin a mediation with a fixed and firm position which sets out what their bottom line is. Each parent may see that there are other ways to meet those same needs. No one is coerced into agreeing to anything, and all decisions are reached on a consensual basis. Joan does not make any decisions for the parents but does share her knowledge and experience working with families and children to help them make the many decisions needed to make a comprehensive parenting plan. Any agreement crafted in mediation is an agreement in principle which gives parents ample opportunity to reflect and/or consult with others such as lawyers, accountants, counsellors, family members, etc.
6. What is the interface between mediation and the legal agreement?
Most people involved in mediation want to ensure that the agreements they reach with the other parent/party are legally binding. As your professional mediator, Joan will work with you both to ensure that you are fully informed about your rights and responsibilities and the effects of each of the decisions in your agreement. Once completed, your final draft can be delivered to your lawyers for independent legal advice (ILA). This will ensure that documents, which you co-author in mediation*, will be legally binding, in the unlikely event of future escalations. Joan also respects your preference as to when in the process to engage your lawyer.
Joan's experience and knowledge of the legal process, conflict resolution, child development and parenting will save you considerable time, effort and money. Joan has worked for over 25 years with families struggling with the very difficult decision to separate. Her overarching objective is to help you both - and your children where necessary - through what could be an acrimonious process with compassion and kindness to craft an agreement that is acceptable to you both.
* Joan uses the same software as Ontario lawyers to draft all relevant legal documents.