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, Joan can help address any concerns you might have.
2. What issues are appropriate to bring to mediation?
You can bring virtually any issue to mediation, as long as all parties agree. Common problems that are brought to mediation include:
• the development of a parenting plan for children
• child and spousal support
• equalization of assets and debts
• disposition of property
• communication and conflict resolution
• post-divorce issues
Many other kinds of disputes may be appropriate for mediation, including parent/child conflict, succession planning, conflict between the adult children and their 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, you will sign an agreement that all communications within the mediation process are confidential and cannot be used or referred to in court or any other forum. You are free to consult your advisors (accountants or lawyers) at any time during the mediation process.
Joan Sinclair only works in closed family mediation, believing that the participants have the wisdom of their own circumstances and the knowledge, motivation and commitment to resolve the issues under discussion.
4. What is the mediation process?
Joan, as a neutral third-party mediator, helps you to communicate with one another to find solutions which work for you both. The intention is to resolve the agreed upon issues using collaborative communication skills which ultimately will assist you both on focusing constructively on solutions to the unresolved problems, thereby avoiding escalation and litigation. Mediation encourages problem solving and improved communication which will serve you through mediation and into your future relationship, especially applicable if children are involved.
Joan holds an individual session with each of you at the beginning of the process followed by joint sessions to negotiate an agreement, although Joan may suggest occasional individual meetings or caucuses. In some circumstances, Joan may use "shuttle diplomacy", when circumstances warrant; meeting with each of you individually.
5. Where children are involved
Consideration of the safety and well-being, stability, relationships with parents, views of the child, cultural and personal identity and financial support is paramount when it comes to children in the mediation process. When there are children, you may wish Joan to speak to the children, if the children’s 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 subject 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.
It is not unusual for parents to begin 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 ramifications of each of the decisions in your agreement. Joan uses the same software as Ontario lawyers to draft all applicable legal documents.
Once you have completed your final mediated agreement, you may choose to seek independent legal advice (ILA) or consultation. 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 if and when in the process to engage your lawyer.
Joan's experience and knowledge of all aspects of separation and divorce supported by her conflict resolution expertise, will save you considerable heartache, 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 through this challenging transition, with compassion and kindness to craft an agreement that is acceptable to you both.