Mediation FAQ's
Answer:
In marital disputes, the law is always available to provide a final resolution of the issues - but often at a terrible cost to the parties, both emotionally and financially. Every lawyer has war stories to tell, of how decent, hard -working people have frittered away their life savings on a few months or years of acrimonious litigation, leaving little or nothing in the end - even to the supposed victor! The emotional cost of the litigation process can also be enormous, tearing apart families and creating wounds that may never heal.
Why does this happen?
Firstly, the law is based on an adversarial system - where parties initially take opposing positions in the hope either that theirs will be found to be correct, or to draw the boundaries of the dispute as much in their favour as possible in order to achieve a more generous compromise in the end. Having taken a strong opening position, parties sometimes begin to believe in the rightness of their case, or become outraged at their spouse's unreasonableness. Instead of moving towards resolution and compromise parties prepare for war. It is a system that is structured to declare a winner and a loser.
Also, litigation has increasingly become too complex and cumbersome for the handling of disputes where modest amounts of money are involved. Even though lawyers are aware of the financial limitations of their clients, they are often unwilling to take cost -effective shortcuts for fear of being taken advantage of by the opposition, or of being criticized in the end by an unhappy client. This results in many family law cases being litigated to the fullest, with two or more lawyers churning out the billable hours at $200 - $300 per hour each. The irony is that most cases eventually get settled by the lawyers, but only after the assets have been significantly depleted and everyone is traumatized by the whole process.
The court systems have not completely ignored the problem. Some courts offer mediation services, which go some distance to avoiding the worst excesses of the litigation option. However, often much of the damage is done before a court -appointed mediator gets involved.
Answer:
Mediation is an age old process where a neutral third person assists parties in reaching a settlement of their differences. It is different from arbitration where a neutral person has the power to make a legally binding determination. In mediation, the mediator has no power to impose a solution. The mediator's job is to help the parties arrive at a voluntary settlement that is binding, but is not imposed against anyone's will.
Answer:
Many of the problems with family law litigation are well known, as witnessed by popular movies and TV shows. Why, then, do so many intelligent husbands and wives routinely hire lawyers at the first sign of a brewing matrimonial dispute, and set this whole expensive process in motion?
There are several reasons. For one thing, people are often simply ignorant about their rights, and in such cases legal advice is to be encouraged. Secondly, many people think that they need a lawyer to compensate for their spouse's greater knowledge or more dominant personality. Thirdly, a matrimonial dispute may spark the spouses' competitive instincts. Many people relish the prospect of using the legal system to punish their spouse for real or imagined wrongs.
Answer:
Assuming you do go to court, the judge will be someone who does not know you or your family. He or she will make a best guess as to what is best for you and your children, but he or she does not know you and may never really grasp the family dynamics that have brought you to this point in your lives.
Many judges believe that their role is to "spread the misery around equally," which may sound a bit mean, but which reflects the reality that they often see - which is that no one is going to be happy, and that the right result probably involves both parties being equally disappointed.
Answer:
Mediation offers an alternative to the litigation of marital disputes. Its objective is to find an honourable and reasonable settlement, in which both parties can be seen as winners, in much less time and at a far lesser cost.
There are two distinct types of family mediation. Many counsellors and health professionals practice a form of mediation that focuses on resolving the emotional and psychological aspects of the dispute. Sometimes this results in reconciliation, or at least it lowers the temperature of the dispute and may create a more favourable climate for an amicable settlement of the issues.
The other form of mediation - which I practice - engages the parties in a fact -finding and problem -solving exercise, the object of which is to divide property and allocate financial and custodial responsibilities in a way that comes as close as possible to meeting both parties' reasonable needs and expectations. This involves educating the parties as to their legal rights. When both parties begin to understand the range of possible results that would be in accord with the law, they can usually find some common ground which is better for both of them than either of the worst case scenarios which could occur if the dice were rolled in a court of law. By avoiding anything close to either of the worst case scenarios, the parties enjoy a 'win -win' solution. Hopefully this is a bit better than an equal share of misery.
Answer:
The mediation process requires two willing participants, who are interested in arriving at a solution that is fair, by some objective standards. No one wants to feel that he or she has been taken advantage of. For mediation to work, the parties must have faith that the mediator understands the law and is sufficiently acquainted with the facts that he or she would not advocate a settlement that is unfair to either party. Sometimes both parties take the final draft agreement to an independent lawyer to get an opinion as to whether or not the terms are reasonable. This can add an extra degree of comfort, and rarely causes the process to fail.
Mediation can be as formal or informal as the parties feel comfortable with. It is often useful for the mediator to see the family's environment and meet the children, if any. Meetings can be held any place or any time that is convenient to everyone. While some sessions are held with both parties present, often it is necessary for the mediator to meet with the parties one-on-one to discuss how they individually see some of the issues. The mediator can be a friend to both parties, while owing exclusive allegiance to neither.
The process is directed to the creation of a written document, which becomes the final separation agreement governing the marital split.
Answer:
The mediator is a professional in private practice who will typically charge by the hour for time spent. (This may be adjusted, depending on the means of the parties, and is always open to negotiation.) Both parties may agree to share the cost equally, but often where one party has greater means it may be more appropriate for one party initially to bear the cost, or to earmark certain funds or assets as the source from which the mediator will be paid. This will be worked out at the beginning. Both parties should feel that, in one way or another, they are contributing to the cost, as experience has shown that people value and benefit more from these processes when they feel they are paying for them.
Answer:
Not every mediation will result in a concluded agreement. At any time, either of the parties or the mediator may conclude that the mediation is not effective, and may terminate the process. In such case, the parties may be effectively back to where they started, poorer by the amount spent on the mediation. Usually very little time will be lost, since it should become fairly clear in a short time whether or not the mediation is a waste of time.
The mere possibility of terminating the mediation may actually provide some comfort, in that people may need to feel that they are not trapped in the mediation, despite the pressures that sometimes may be experienced in the course of a mediated negotiation.
While it is impossible to say that one cannot be worse off having embarked on mediation, such cases would be rare. This may be contrasted with the litigation option, where many people have complained that they would be so much better off had they never embarked on matrimonial litigation.
Answer:
No one can be forced to engage in mediation. Mediation requires a voluntary commitment from both parties. If you and your spouse are both interested in trying mediation, one or both of you would make contact with me and indicate that you are interested. If either or both of you want more information, I am more than willing to speak to you (at no charge) to explain the process.
If you believe that mediation is right for you, but you don=t know whether your spouse is interested, the best thing is to let him or her know that you are interested in mediation (generally) as a way to resolve your separation issues, and invite him or her to consider it. If he or she is interested, you may suggest that he or she be involved in choosing the mediator. There are several excellent mediators working in the Halifax area, any of whom would be a good choice.
Answer:
While this is not true of everyone, most of the mediations that I conduct do not include the parties' lawyers. There are several reasons for this. One is that many people cannot afford the extra cost. Mediation can be very effective before people have lawyers, even though legal advice may be required as an agreement forms.
Another reason is that having lawyers present changes the dynamic. The lawyers may tend to do much of the talking, which is not necessarily helpful or productive. I like to get the parties talking and actively engaged in problem solving.
Answer:
This can be very helpful, so long as both parties are OK with it.
Answer:
Having a separation agreement is not the same as getting divorced, but it accomplishes almost all of what most parties want or need. All issues involving money and children are dealt with in the Separation Agreement, and that agreement will form part of the divorce judgment if and when one is eventually obtained. The only thing that the divorce judgment does that a Separation Agreement cannot do, is give you a right to remarry legally.
Answer:
There are essentially two ways. Some people will obtain a divorce kit (available from the Court) and do it themselves. Others may feel the need to have legal assistance, in which case a private lawyer can assist in obtaining what will be (with a signed agreement) an uncontested divorce.
Answer:
In order to begin mediation, I require the parties to sign a Mediation Agreement which sets out what the rights and obligations are during the mediation. A sample agreement is available on this site