FAMILY MEDIATION SERVICES

If you are involved in a family dispute, separation or divorce, or are planning to enter a cohabitation or marriage relationship, MDR Associates can help you resolve it in a cost efficient, timely and confidential way. You can do this while protecting your legal rights and in a way that can deal with any power imbalances.

Family Mediation

Mediation is one of the most effective ways to deal with family disputes, separation or divorce issues. Mediation is confidential, efficient, cost effective and reduces conflict. Mediation helps parties learn how they can deal with conflict and raise difficult issues so that they can clients can maintain a relationship if necessary or desirable (such as when parenting children) and learn work through future problems on their own.

Separation/Divorce mediation is the process in which a neutral third person (the mediator) assists clients to negotiate an agreement of some or all of their legal issues as a result of the end of their cohabitation/marriage.

Conflict Prevention

Alternatively, mediation of cohabitation/marriage is a process in which the mediator assists people who are thinking of living with someone in a common law relationship, be it heterosexual or same sex, to arrive at an agreement that sets out respective rights and obligations in the event the couple separates or one of the couple dies. Mediating a cohabitation/marriage contract is a sensible, cost effective way, to ensure less conflict in the future.

Many relationships fail because of unspoken assumptions and expectations. By talking about expectations and assumptions on a financial level, and any other level the couple thinks appropriate, parties can lay the groundwork for a much less stressful relationship in the future. The mediation process can assist couples who find it difficult to talk about these issues and teach them skills to better be able to have difficult conversations in the future.

Types of family issues include:

Separation/Divorce

In the context of a Separation or Divorce you will find one or more of the following issues need to be resolved:

Types of Mediation - Closed or Open

Closed

Mediation can be "closed" or "open". The norm is closed mediation which means that anything said, offers made, settlement positions set out verbally or in writing cannot be repeated in another proceeding such as court or arbitration, unless both parties agree to it. Closed mediation also means the mediator cannot be called on to give evidence concerning what was said or what happened in the mediation.

Open

In open mediation, the mediator can be summonsed to give evidence as to what happened during the mediation, or they can be required to make a report to a judge or arbitrator as to their impression of the mediation and the parties to a mediation.

At MDR Associates, we practice closed mediation.

Suitability and Readiness for Mediation

While mediation is suitable for most people most of the time, there are occasions where mediation is not suitable at all, or it may be suitable but the time is not right. For example, one of the spouses may be very angry or hurt or depressed; one may feel very guilty and these feelings can interfere with a spouse's ability to negotiate fairly and constructively. While in many cases, a mediator can assist parties to work through this conflict, at times, it may be useful to put in place a temporary agreement dealing with urgent issues while the spouse is coping with his/her feelings. Once those feelings have subsided enough to enable the spouse to deal with issues without being overwhelmed, mediation of a final agreement may begin.

We experienced in assisting couples in assessing their readiness to mediate. If we determine that mediation is not suitable, we will help the spouse or the couple find appropriate resources and assist them in putting a temporary agreement in place until they are ready to mediate.

The Mediator's Role

The mediator will act as an independent, neutral third party who has no decision making power. The mediator's primary function in the mediation process is to promote constructive discussion between the disputing parties.

In the process of mediation, the clients retain control over their own decisions. MDR mediators are generally legally trained and have practiced in the area of family law. MDR mediators understand the law and are knowledgeable about the law. The Mediator will give clients a general overview of the law and how it applies to matters they have to resolve as a result of their separation but they will not tell clients what to do or give what is referred to as independent legal advice.

The mediator will assist the parties in sorting through all the issues and organizing and prioritizing them into a manageable agenda. The mediator will help the parties identify issues and concerns and help them break big problems into manageable pieces.

The mediator will gather information relevant to the matters to be resolved, and he or she will help the parties understand what information is necessary. It is the norm in financial mediation to provide independent proof, by way of statements or documents, confirming the value of assets and debts.

The mediator will ensure that the process works fairly for both clients and that each person is able to express his or her needs and interests. It is normal for parties to be at different places in their acceptance of the separation. The mediator will control the pace of the mediation to ensure that it is a workable pace for both parties.

It is common that parties to the mediation have unequal negotiation or bargaining skills. Often, one party may have more skills in one area and less in another. This does not mean that they cannot mediate successfully. The mediator will ensure that the party with less skill in a particular area is able to participate fully and not be overwhelmed by the more skilled spouse. If the mediator feels he or she cannot ensure that the process operates fairly for both parties, then he or she will end the mediation process.

The mediator will assist the parties to generate creative and workable options available to their issues and he or she will assist the parties in determining what options are the most favorable.

The mediator acts as a conflict manager to ensure that the mediation process is civil and respectful to all participants. The mediator will help parties communicate in a constructive way and in many cases, he or she will help the parties understand how they might communicate together more productively on their own.

The mediator will assign "homework" to the parties, as appropriate, to be completed between sessions. This will keep the process moving and as much as possible, will reduce time and costs of reaching a settlement.

Where parties reach agreement, the mediator will prepare a draft agreement. Parties always have the right and the option of having a draft agreement reviewed by their independent lawyers before signing it.

The Clients' Role

Clients should come prepared to work hard, negotiate and settle issues. In the case of separation and divorce, clients must be prepared to accept that their relationship/marriage has come to an end and that a written agreement must be put into place to clearly set out rights and obligations. In many cases, one party does not want the relationship to end but accepts that the other party does, and, in these cases mediation is entirely possible.

Clients should spend time understanding not only what they want but why a particular out come is important to them; and, clients should also spend time trying to understand and anticipate what the other party wants and why a particular outcome is important to that person. In order for the mediation to be successful, clients must be prepared to consider solutions that meet their interests and needs and go some way to meeting the other party's interests and needs.

Clients should be prepared to listen to what the other is saying. Most couples in conflict and in the process of separation and divorce have challenges with commuication. The mediator will create a safe environment for the parties to assist them in their challenges.

Clients must be prepared make full and open financial disclosure. This is important for many reasons, but two significant reasons are the building of trust between the parties and if full financial disclosure is not made, the agreement you arrive at may be rendered invalid in the future. The mediator will assist clients in understanding what full and open financial disclosure is. If clients feel that the other spouse will not be honest about financial disclosure he/she should advise the mediator.

Clients must be prepared to complete assigned "homework" tasks and come to each session ready to deal with the agenda items.

Clients should consult with their lawyers as necessary through the process and before making any final decisions or signing a final agreement.

The Lawyers' Role

It is not necessary to have independent legal advice for a written, signed and witnessed agreement to be binding. It is strongly recommended however that clients have independent legal advice before signing a final agreement. Having independent legal advice provides the client with assurance that he or she has the ability to reflect on the agreement, away from the table, with a professional whose job it is to raise legal issues on behalf of his or her client.

Another very important reason to have independent legal advice is that if the terms of the agreement are questioned after an agreement is signed, a court will want to know if the person questioning the terms of the agreement had independent legal advice. If the person did not obtain independent legal advice, a court might consider setting the agreement aside.

Many clients are worried that if they go to see a lawyer, the process will become litigious. If clients already have lawyers, they should communicate with their to ensure that they are "kept in the loop". Because the mediator will charge for his/her time for speaking to a party and the lawyer will also charge his/her client for his/her time, the mediator will communicate with the lawyers only as necessary.

The mediator will also let clients know in the mediation where he or she thinks the lawyers may have concerns. These concerns can then be addressed in the mediation process and there should not be any surprises when clients then meet with their lawyers.

If clients do not have lawyers, MDR Associates will provide clients with a list of lawyers who are experts in family law and who will support the client in the mediation process.

In our experience, the lawyers can provide excellent support to the mediation process. Working together with a client in the process of mediation, a lawyer can assist the client in: formulating realistic goals for resolution, help develop options, identify and analyze issues, help a client understand his or her short term, medium term and long term needs, and help a client make fully informed decisions.

The Family Mediation Process

Prior to the commencement of mediation, there will be a mediation intake either by phone or in person. Although the process will vary from case to case, a typical mediation will include the following steps:

During the sessions:

How Long Does The Mediation ProcessTake?

The length of the mediation process depends on the number of issues, the level of conflict between the parties, how ready the parties are to negotiate, how willing they are to reach a settlement, and what if any discussion the parties have had on their own.

Where parties have many or all of the issues to work through and have done little talking on their own, and the level of conflict is high, they can expect at least five meetings. The mediator will check in with the parties to ensure that the process is working for them.

Where parties have reached agreement on some or many issues and the level of conflict is low, parties may only need 2 or 3 sessions.

Many people who attend mediation without their lawyers being present prefer to meet for sequential sessions with each session lasting about 2-3 hours. Sessions are booked once a week, once every second week or as desired by the parties depending on urgency, scheduling and the length of time necessary to gather information.

Parties who can meet on their own outside of the presence of the mediator are encouraged to do so. Sometimes unmediated meetings make the mediated meetings more difficult because of things said or positions taken. Parties should talk to the mediator about meeting on their own so that they can talk about the process and ground rules for the unmediated meeting.

In very many cases, the parties can resolve most if not all issues by attending medation with their lawyers for a half-day or all-day session with each other and the mediator. In these cases, the parties will have already exchanged all their information and they come prepared to try and settle in one single session.

Preparing for Family Mediation

Good preparation will enable you to participate effectively in a mediation. Generally, you should:

Review your goals and interests and those of the other party. Put yourself in the shoes of the other party and try to imagine what might be important to them.

List any questions or concerns you want to raise with the mediator before the mediation.

Meet with your lawyers to get an understanding of your rights and obligations, the likely results (outcome, money, time, cost) if a settlement is not reached.

Be future oriented and receptive to the concept that people and situations can change. Just because something or someone was always "that way" in the past does not mean that it will be "that way" in the future.

Be prepared to listen to the other party.

Approach the mediation optimistically and with a positive attitude.

Complete the Family History Questionnaire and Mediation Intake Form (click here) and send it to the mediator prior to the mediation.

Preparation For Financial Issues

In order to prepare for financial issues, you wil need to prepare a budget and net worth statement. Some clients will have already completed a mediation of these statements with their lawyers. If so, clients should be prepared to bring a copy to the mediation together with all documentation supporting the numbers in the financial statements.

MDR mediators are familiar with and have all of the financial programs and forms used by your lawyers and the court. Click here to obtain a copy of the financial form if you have not already prepared one.

The mediator will work through all of the financial issues and assist parties in determining ways that their assets and debts can be valued. Parties will be provided with a binder and filing system to manage and organize their information. Parties may wish to start gathering copies the following information:

Preparation For Parenting Issues

You should think about the following considerations for parenting:

How will decisions concerning the children be made?

Where will the children live?

How will parents exchange information about the children?

How will children communicate with one parent while they are in the care of the other parent?

Who will look after the children if a parent is not available on his/her regularly scheduled time?

Who are the approved caregivers?

How will parents share holidays and special occasion? For example:

What is the involvement of extended family?

Does a parent make up for missed time? And if so, how?

What if a parent wants to travel with the children?

What if a parent wants to change residences?

Who can attend functions where children are present and away from parent's home (e.g. school plays, sporting events)?

Can a parent change a child's name?

What happens if one parent dies? If both parents die?

How are new partners introduced into the children's lives?

How do we resolve disputes?

Frequently Asked Questions About Family Mediation

What is it?
Family mediation is a process in which an independent third party assists the parties to resolve outstanding issues between them.

How much does it cost?
This will depend on the number of issues and the willingness of the parties to reach an agreement and each case has its unique characteristics. All time required by the mediator for the matter is billed at his or her regular daily, 1/2 daily or hourly rate, and this usually divided between the parties.

Do I need a lawyer?
No. While no one can force you to go and see a lawyer, I feel it is in your best interests to consult a lawyer either before or after the first mediation session, before signing the final separation agreement and as often as is necessary in between.

How often and where do we meet?
Usually every two weeks, at the mediator's office. This can be accelerated or slowed down as circumstances dictate.

What if I think I can do better in court?
You should always choose the process (mediation, lawyer-lawyer negotiation, arbitration, litigation) which offers the best alternative to you after considering all the relevant factors such as cost, speed, privacy, impact on children, etc.

Can I terminate the mediation process?
Yes, at any time. However, the mediator may reserve the right to call you back for one final session so that the termination is not premature.

Do I need to see my lawyer before the first session?
This is preferable, but not essential.

Do I need to have a good relationship with my spouse in order to mediate?
No. Most communication and relationship problems can be managed in the mediation process. Caucusing (where parts of some meeting may involve the mediator and one spouse only) can help to minimize personality conflicts. The essential ingredient is a desire to reach a fair and equitable agreement.

What if I think my spouse is a better negotiator than I am?
In almost every case, one spouse is a better negotiator than the other. However, there are many factors in the mediation process which help to equalize bargaining power.

Do I need to be separated before the mediation starts?
No. Mediators can deal with conflicts in ongoing relationships, or with situations where a separation in immanent, as well as post-separation situations.

Is this agreement I reach with my spouse legally enforceable?
Yes if it is in writing, signed and witnessed

How do I start?
Click here or telephone Richard Moore at 613-230-8671 to discuss any questions you might have.