Mediation - The Basics
Family Mediation is a negotiation process where spouses settle their issues outside of court in direct discussions facilitated and controlled by a single neutral professional called a mediator.
The process occurs via meetings directly between the parties and the mediator. Each party must have their own lawyer, because the mediator must remain truly neutral – and therefore cannot provide legal advice to either party. A mediator can provide legal information, guide the discussion around the various legal issues, and can even orient the parties to a range of possible or usual outcomes, but they must stop short of advocating any particular outcome. Practical, strategic and legal advice about what outcome may or may not be optimal for a spouse comes from that spouse’s own lawyer, not the mediator.
Each party’s own lawyer generally works in the background, advising their client as to their legal rights, answering their specific questions, and providing them with recommendations and opinions about particular resolution points. It is very rare for the parties to have their lawyers participate in the meetings themselves.
The mediator will gather information about the parties and their marriage, their children, their assets, debts, and their cash flow and expense arrangements. They will manage the acquisition and sharing of documents (link to documents section) in support of this information exchange. They will also provide advice about family law issues appear arising from the parties’ separation, and will help define the questions to be answered, other information needed, and will then manage the communication around the bargaining towards a resolution that all find acceptable.
Some of the advantages of mediation:
Economical – the parties are paying one professional fee to handle the bulk (perhaps all) of the negotiations and agreement-building. If there is one issue that is creating an impasse, the parties can take that issue to their respective lawyer, to an arbitrator, or to a court for resolution, while preserving the rest of the agreement they built inside the mediation.
Confidential – the mediation process takes place in private meetings. No embarrassing court appearances and no personal financial documents (such as tax returns) are filed in the public court records for all to see.
Safe – the mediator is there to facilitate communication towards a mutually acceptable outcome. Generally neither party gets everything they want – balanced compromises often being the hallmark of a good agreement. It is also true however that neither party is forced to capitulate – by its very definition the process is voluntary and no one can force anyone to sign the agreement.
Once the process has achieved the goal of agreement on all of the issues, usually the draft Separation Agreement is created by the mediator and distributed to the parties for review. It is then that each party consults their own lawyer to get some final legal advice and questions answered about the terms or the language used in the document. If all is in order, the document (the Separation Agreement) is signed. If revisions are necessary, that can be done through the mediator, or between the lawyers if the parties so choose.