Like many divorcing couples, you and your spouse may be considering using a mediator to assist you in resolving your issues, but you might be unclear about what a mediator actually does. Unlike arbitrators, mediators do not make decisions or determinations as to the rights of the parties or the allocation of property. They will, however, help the couple negotiate and structure their own agreement. A mediated agreement has the advantage of substantially increasing the likelihood that the parties will follow its terms since it reflects the parties’ own decisions as opposed to terms imposed by a court. Additionally, reaching a mediated agreement significantly reduces the time, expense, and conflict of your divorce process. As a Toronto family lawyer, I have been involved in cases that have been intensely litigated for many years only to be resolved in one 3-hour mediation session.
The advantages of “interest-based mediation”
While all forms of mediation offer advantages over litigation, not all mediation or mediators are alike. Mediators practicing what is called “interest-based mediation” will usually end up with a better success rate. In interest-based mediation, your mediator should try to determine what each of your underlying interests are and help you structure a settlement that is focused on addressing those interests. For example, a husband may feel that his wife is asking for an unreasonable amount of spousal support. A mediator trained in interest-based mediation may help bring out underlying childhood fears of poverty, and gently show her that she does not need as much support as she may think. Uncovering and addressing this fear could significantly help the parties reach a reasonable spousal support settlement.
The timing of mediation is critical
You and your spouse, like many couples, may consider seeing a mediator at the beginning of your separation process hoping to reach an agreement before each of you consult your own Toronto family lawyer. While the desire to reach a quick agreement is understandable, mediation is not advisable at that point as there is a high chance that one or both of your lawyers will bring up issues and problems that you had not thought of when the agreement was reached. In that case, you will have wasted your money and time on the mediation. The time to see a mediator is after your lawyers have isolated unresolved issues or sub-issues and after the parties have exchanged financial disclosures. Furthermore, it is often advisable to have the lawyers present at a mediation so that objections and any additional issues can be raised at that time.
Two more important caveats and tips about mediation
- A mediator does not draft the final agreement – you will still have to consult your independent lawyer after a mediated settlement has been reached.
- Look for a mediator who is a senior family law lawyer with some mediation training.