Divorce proceedings are often emotionally-charged affairs that can create an adversarial environment for all parties involved, especially when money, property, and child custody are involved. They also tend to be expensive as legal bills stack up during negotiations or in family court.
One approach to settling divorce issues is through the mediation process. This approach allows couples to openly discuss and to potentially bring divorce-related matters to an amicable conclusion, taking much of the stress out of an already difficult situation.
What is divorce mediation?
Mediation, which is a common form of Alternative Dispute Resolution (ADR), is a process that helps both parties in a divorce reach a mutually acceptable outcome. Some issues that can be resolved during mediation include child custody, child support, parenting time, the division and distribution of marital property, and spousal support.
Mediation can also help divorcing spouses avoid lawyer/legal fees, costs of court filings, the time and stress of having to appear and testify in court and delayed outcomes due to the court system.
However, mediation requires that both parties be fully open and agreeable to the divorce mediation process. If one or both spouses are not, mediation might not be the best avenue to reach a settlement.
How divorce mediation gets started
Once both spouses agree to pursue mediation, they choose a mutually-acceptable mediator. Mediators are usually lawyers, but when they act as a mediator, they don’t represent the specific interests of either party. However, you may speak with a divorce lawyer before mediation so you understand your rights and responsibilities under the Divorce Act and Ontario’s Family Law Act.
During the initial consultation, the mediator must also ensure that each party is voluntarily participating in the mediation process. For example, if either party has been subjected to abuse or cruelty that has resulted in a power imbalance between them, the mediator may not be able to determine that each party satisfies the voluntariness requirement.
Otherwise, after “screening” the couple and concluding that mediation would be beneficial, the mediator will begin the process.
What is open vs. closed mediation?
Open mediation means that all martial information gathered during mediation can be used against them in court or arbitration.
Conversely, closed mediation is completely confidential. This allows parties to speak freely and honestly during mediation without fear of what they say being entered into the record in court or arbitration at a later date.
The person’s lawyer can advise them which option is best for their particular situation.
What happens during divorce mediation?
The mediator will often begin the process by providing to each spouse written questions pertaining to the marriage and requesting relevant financial documentation. The questions and nature of the documents requested are based on the mediator’s findings during the initial meeting. Once all the information is collected and reviewed, the mediator will schedule a series of meetings, each with one or more specific agenda items to discuss.
For example, an agenda item might be the division of marital property. Before the meeting, the mediator must first obtain information about the assets and liabilities each party has accumulated. This will include cash in chequing, savings, brokerage, retirement accounts, marital home, vacation homes, and time-shares. The mediator will review all this information and present their recommendations for dividing the assets at the meeting. These recommendations are usually in the form of assigned percentage values. If the parties agree on the percentages, the mediator will help pick and choose how to divide each asset.
The agreed-upon terms are then entered into a Memorandum of Understanding (MOU), which is a record of the agreement terms of each agenda item.
What happens after a couple has agreed on all agenda items?
Once the MOU is complete with all agreement terms, each spouse can take it to their respective lawyers for review. The lawyer will ensure that their client’s rights and the interests of the children are protected and that the terms are fair. Either lawyer can make revisions to bring back to the other party for review and further mediation.
After each spouse agrees upon the MOU, one of their lawyers can incorporate them into the final and binding Separation Agreement. Each spouse will sign the agreement before witnesses to ensure its enforceability.
The advantages of mediation during divorce
Many couples choose to divorce through mediation instead of litigation due to the many advantages the process offers, including:
- Participation is completely voluntary, and either party can terminate partaking in mediation without repercussions, and subsequently decide whether to continue mediation or find other avenues of resolving divorce matters
- Divorcing couples make all the final decisions instead of leaving potentially life-altering decisions in the hands of a third party such as a judge
- Parties can avoid the time and stress involved with having to appear and testify in court
- The process promotes positive communication and collaboration between spouses, reducing conflict and preserving an amicable atmosphere
- Parties can choose between open or closed mediation
- Mediation is much cheaper and issues resolved faster than going through litigation
If you would like to explore whether mediation is suitable for your situation, please call Shnier Mackenzie Law & Policy Consulting, PC, at 416-781-0800 for a free consultation.