What is Mediation?
Mediation is a confidential, voluntary process that families going through a separation or divorce may use to try to reach agreement on issues resulting from their separation. The mediator helps facilitate a fair agreement between the participants, however does not make a decision for them. If the participants are able to reach agreement, a separation agreement will be drawn up which is legally binding.
What issues can be dealt with at mediation?
At mediation, participants are able to deal with all matters related to a separation, including:
- parenting arrangements for the children;
- division of family property and family debt;
- child support and special and extraordinary expenses for the children (like childcare, extracurriculars, health or post-secondary expenses);
- spousal support (also called “alimony”);
- division of businesses;
- decision-making and communication guidelines;
- interim arrangements (such as who stays in the family home, who pays for the family expenses, and where the children will live until more permanent arrangements are made);
- and more.
Does mediation cost less than court?
In most cases, yes! Mediation is a solution-focused process that is much less formal than court. The goal of mediation is to reach agreement on what the future will look like, rather than dwell on the past. The mediator’s fees are typically split equally by the parties.
Will I still need a lawyer if I mediate?
Regardless of the process you choose to resolve the issues related to your separation, you should always get legal advice. We encourage participants to get legal advice at least once before they start mediation and before they sign any agreements resulting from mediation. Some participants also choose to bring their lawyers to mediation or have them “on call”, which can often increase efficiency as participants can get legal advice in real time.
How long does mediation take?
The time it takes for a family to resolve their issues depends on a number of factors, including how complex their issues are, how many issues there are to resolve, how prepared the participants are with their financial disclosure, and how willing the parties are to compromise and work together to reach an agreement. Most mediations last a day, and the entire process can usually be wrapped up in a few months. In contrast, a court application or trial can take years (and is significantly more expensive)!
Will our agreement be legally binding?
Yes! If an agreement is reached in mediation, the agreement will be put into a written contract by either the mediator or one of the lawyers in attendance. The parties then have the opportunity to get legal advice on the agreement from their respective lawyers before signing. Once signed by all parties, this written agreement can be filed with the court, and is binding on both parties in the same way that a court order is. The agreement can be used by Family Maintenance Enforcement to ensure support is paid. The terms reached in agreement can also be formalized in a court order.
Do we have to be getting along to mediate?
No. Many higher conflict families can successfully use mediation to resolve their differences. As long as both participants are able to safely negotiate with each other, make full financial disclosure, want the conflict to end, and are open to making an agreement that is reasonable, mediation can be an effective process.
Will my former spouse use what I say in mediation against me in court?
No. One of the benefits of mediation is that everything you discuss in the mediation is confidential and cannot be used by either party in any future court proceedings.
If we can’t agree, will the mediator decide for us?
No. The mediator is a neutral third party who assists parties in reaching a fair agreement. They will not make a decision for you, and they can’t force anyone to participate or agree to anything against their will.
Should we mediate right after separation, or wait?
Starting right away has its benefits. It’s a great way to set the tone and work together on urgent issues such as how to communicate with each other, who will stay in the former family home, who will pay for expenses, etc. It is also most time- and cost-efficient if you can cooperate with each other early on to exchange the necessary financial information, and a mediator can help to identify these tasks and assist with deciding on a process to value assets (such as the home or business). You can also discuss issues related to your children right away, and put together an interim plan that avoids subjecting them to any additional unnecessary conflict.
I have a lawyer and we have filed in court, can we still mediate?
Yes! Mediation is available at any point in the separation process and beyond. Many families decide on mediation only after experiencing court for the first time.
If you’re interested in retaining Laura Allen or Tannis Baradziej as your mediator, or any one of our lawyers to represent you in a lawyer-assisted mediation, please contact our office at 250-591-1055.
Please note that the above information is legal information and NOT legal advice. We recommend that everyone obtains legal advice specific to their situation.