Family law mediation is about resolving family problems with the guidance of a skilled facilitator who helps the participants, also called disputants, come to a mutually agreeable resolution. The facilitator may be trained as a lawyer, social worker, or other professional and is someone the participants both trust to assist them.
Being impartial and independent means the mediation facilitator cannot take sides with either participant in the dispute or provide any legal or other professional advice to either of them. The facilitator is tasked with guiding the participants to find their own customized resolution.
Understanding Legal Rights Up Front
Before starting the mediation process, it is invaluable for each spouse or partner to learn about their legal rights relating to each issue on the negotiating table. This is where your family law lawyer steps in—right up front. Each participant retains their own family law lawyer.
Once you understand your rights and obligations and the mediation process is explained, the participants come to the mediation fully versed to discuss not only what they are entitled to receive but also what the process is all about.
A participant may attend the mediation represented by his or her own lawyer, or unrepresented, that is, without a lawyer.
Both participants and their family law lawyers, if involved, will be asked by the mediator to sign a contract which confirms the scope of the issues to be discussed, the scheduling of meetings, costs, and other process-related matters. The mediation process is flexible and participant- focused, meaning that the spouses or partners take an active role in the discussions, considering options, and crafting favourable alternative solutions.
Open or Closed Mediation
Typically the mediator will hold an initial meeting separately with each participant to the mediation to canvass the participant’s concerns and interests. If the participant has retained a lawyer, the lawyer may be present at this session and all subsequent meetings.
Following this initial private session there will be a series of joint sessions including participants and their lawyers, if involved, until an agreement is reached. If the clients find it difficult to discuss tough issues face to face, a mediator may ease the tension by providing separate private rooms for each participant, and she will “shuttle” between the rooms.
How the mediation moves ahead is important. The process may be either “open” or “closed.” These options are defined by the level of confidentiality covering all discussions and documents exchanged. In open mediation, confidentiality is absent. All communication, documents, and discussions may be used in another issue dispute forum such as court or arbitration if the open mediation fails. In closed mediation, if no agreement is reached, then only the fact that mediation was attempted and subsequently failed is disclosed if the matter proceeds to another forum for resolution.
If resolution is reached in either form of mediation, a written agreement often called a Memorandum of Understanding is drafted by the mediator and privately reviewed by each participant with their family law lawyer.
Mediation Fact Summaries
Each participant will be requested to describe in writing the goals for the mediation, identifying issues of both priority and lesser importance, as well as issues about which the participants are already in complete agreement. These “fact summaries” or mediation briefs are exchanged before any joint sessions begin. This exercise helps each participant focus on what is essential for them to cover at the mediation. It also assists the mediator in understanding the spectrum and importance of the interests of both sides.
As this is a dispute resolution process, it is expected that the tone of the language in the briefs and during the mediation sessions will be cordial and cooperative. Participants who are well prepared in understanding the process gain confidence to express their points of view and maintain an open mind, more so in a closed mediation setting.
Once a resolution is reached, if a spouse was not represented at the mediation by a family law lawyer, that participant will meet again with his or her individual family law lawyer to receive independent legal advice. This is a critical step to ensure that each participant fully understands the nature and consequences of the agreement prepared in draft format at that stage. Entering into an agreement voluntarily with the complete sharing of all relevant financial information ensures that the foundations of the terms of the agreement are well supported. The agreement is then finalized and signed by the clients and their lawyers.
Mediation to Break a Negotiation Impasse
Mediation may also be introduced during the collaborative approach or negotiation process when a stubborn impasse may occur, or when a single issue may need to be resolved before turning to the next step in the main dispute resolution process.
A hybrid of the mediation process is the mediation/arbitration or “med/arb” approach. This process gives the disputants an opportunity to reach a cooperative resolution first through mediation. If the mediation fails, the impartial mediator changes roles to become the arbitrator, who convenes a hearing and imposes a binding decision. There are special rules of procedure relating to the med/arb process, including an initial screening to assess whether the process best suites both disputants.