A GUIDE TO MEDIATION
Information adapted from 'A Consumer's Guide to Mediation' prepared by
The Toronto Chapter of the Ontario Association of Family Mediation

Family mediation is an informal process where two or more people work with an objective third parent, a mediator, to resolve the issues between them on a consensual basis.

1.   To Mediate or Not to Mediate....

A large number of 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.

As with any process, mediation is not for everyone. There are a number of issues to consider when deciding whether to try mediation. A competent mediator will assess the following:

  • Are both parents motivated to try to settle the issues between them?
  • Are both parents competent to state their needs and interests, albeit with assistance?
  • Do the parents understand their basic rights and responsibilities under the law?
  • Do the parents 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 the parents to negotiate?

If you'd like to explore these or other questions further, Joan Sinclair would be pleased to assist you in determining in what ways mediation may be appropriate for your situation.

2. What Issues are Appropriate to Bring to Mediation?

Families can bring virtually any issue to mediation, as long as all parents agree to discuss it. Common problems that brought to mediation are

  • the development of a parenting plan for children (custody and access)
  • support for children and/or spouses
  • disposition or handling of property
  • care of an ageing parent
  • parent-child conflicts

Many other kinds of disputes may be appropriate for mediation. The key is for the parents to agree on what they wish to bring to the table for negotiation.

3. How do I choose a Mediator?

Most important of all is the question of mediator competence. Mediators come from a variety of backgrounds such as law, social work or the mental health field. lt. is always useful to ask a mediator about his/her training and experience. Requesting a copy of a résumé is helpful in this regard. References can be requested, either from past clients or from other professionals with whom the mediator has worked. Has the mediator been referred by someone? There is no substitute for simply talking to the mediator to get a sense of his or her style and manner. It is important to have a degree of rapport with and confidence in the person who will be mediating.

Another issue is whether the mediator conducts mediations on an open (nonconfidential) or closed (confidential) basis. In open mediations, a report can be filed with the court. In closed mediations, all communications within the mediation process are confidential, and cannot be used or referred to in any other forum. Some mediators only work within the framework of closed mediation; others offer their clients a choice between open or closed.

The third issue to consider when picking a mediator is cost. Mediators charge different amounts, and may have sliding scales - it is always helpful to ask for the mediator’s fee structure when seeking assistance. Some mediators accept Legal Aid mediations, while others do not. Similarly, some mediators ask for retainers prior to starting the mediation; others ask clients to pay as they go, or simply bill them at the end of the process.

Finally the location of the mediator may be important, especially when considering the ease or difficulty involved in getting to his/her office.

4. What Happens When I Get There?

The details of the mediation process can vary from mediator to mediator, but the basic structure is fairly consistant. Joan's sessions are usually held at one of her offices, where the parents will meet with her and each other. While Joan works directly with the parents, lawyers can be as involved in the process as each parent chooses.

Joan may hold an individual session with each of the parents at some stage in the process. The meeting with all parents and Joan may occur on one day, or over the course of different days. The parents 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 parents, who are never in the same room.

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 parents and their 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 meets those same needs. No one is coerced into agreeing to anything, and all decisions are reached on a consensus basis. Joan does not make any decisions for the parents. Any agreement is crafted by the parents, after ample opportunity to reflect and/or consult with others such as lawyers, accountants, counselors, family members, etc.

5. How Do I Make My Agreement Legal?

Most people involved in mediation want to ensure that the agreements they reach with the other parent are legally binding. This can be accomplished primarily in two ways: through a signed and witnessed separation agreement, or through a court order. A lawyer should draft any separation agreement. and each parent should receive independent legal advice before signing it.  If there are legal proceedings which have been adjourned so that mediation can take place, the parents may wish to file their agreement with the court, to be incorporated into an order. In either event, legal advice should be sought, so that each parent is clear about the effects of their agreement. Joan, working with the parents, can provide a written record of any agreements reached.

 

Contact Joan Sinclair for a free
confidential preliminary telephone consultation:
Tel. 416-899-3613   Fax: 416-533-0996   Email: joansinclair@bellnet.ca

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