Mediation – It Could Be the Best Family Law Decision That You Make

 Why mediation?

The promise of mediation is that it will be faster, less expensive and more collaborative than the court-based alternative to addressing family law disputes. If the right compliment of factors is present, then mediation can absolutely deliver on this intent and, in many cases, can reduce the emotional strain on all parties.

While mediation is a tremendous option for many, there are some misconceptions about the process that could prevent some people from exploring it. One such misconception is that everyone is well suited for Court, or other adversarial resolution processes. Another is that parties cannot seek to resolve all issues through mediation before ever testing more toxic, adversarial resolution processes.

There are also some aspects of the mediation process that offer unexpected benefits that can, if not considered carefully, be perceived erroneously as drawbacks. Specifically, parties may wrongly shy away from mediation, if they fear that they will end up in Court anyway, duplicating effort and cost.

Allow a seasoned family law lawyer to clear up these misconceptions that could steer you away from what could be the best family law decision that you make: to mediate!

 “You will be hearing from my lawyer!”

Despite the ubiquity of this mantra in film and TV, this is a phrase that an overwhelming majority of people have never said and may never say in their lifetime. The actual reality for many when they need legal support is that it’s a new and, frankly, overwhelming endeavour. Because of this the average person doesn’t have a very accurate sense of their hardiness for litigation until they are thrust into the Court system by some circumstance in their lives.

Mediation can be interpreted as a first step of sorts, that gives parties insight into the hurdles of litigation that could await them in Court, but offers, in its place, mutually beneficial outcomes and considerably less financial strain. It could result in a full and final resolution of all their issues without the daunting prospect of Court. But, in any event, it can help parties take the temperature of the legal system and better understand how emotionally equipped they are to end up in Court.

If you were asked to participate in a marathon for the first time in your life, it would be difficult to really evaluate how you would be able to tolerate the preparation for and execution of the endeavour. Generally, one would begin training and perhaps run a shorter distance first. This first race is similar to mediation in this context. It is a full, robust experience in and of itself and it can have immensely rewarding outcomes. But it is also a very valid litmus test for readiness and desire to proceed further if needed. Not everyone is cut out for Court, and even those who consider themselves game must bear a wealth of unpleasantness that is baked into the adversarial process.

Mediation is an elastic and client centered process. You can choose to attend mediation with your family law lawyer, or you can choose to attend mediation without lawyers. Some parties choose to attend mediation without lawyers to discuss certain issues, and then they attend a second session, with their lawyers, to discuss more complex issues. Your lawyer will be able to guide you advise what is the best strategy for you.

What if it doesn’t work? Haven’t I just wasted my time and money?

Prime before you paint.

While shopping in a home improvement store, I once overheard a customer ask a sales associate in the paint department “do you have to prime before you paint? I don’t think I want to spend the extra time and money on that”. The associate replied, somewhat sarcastically, “well, you don’t have to do any of this, but it will make your life a lot easier if you do…”. Like many things in life, from painting to family law proceedings, preparation pays off.

If unsuccessful, mediation can be considered a first stop on the family law journey. While the journey can certainly also end at this first stop, and that is the goal, don’t forget some very important preparatory investment has been made. Mediation gives both lawyers and the parties involved excellent insight into information about the other party’s case, expectations and temperament. All of this strengthens your case regardless of the outcome of the mediation itself. This discovery stage also helps distill what is really important to the parties and assesses how much additional investment they can mutually tolerate.

 The Home Stretch

Your preparation paid off and a Separation Agreement was successfully negotiated through mediation. This is a tremendous success but there is a final step to crystallize and secure your outcome. Bringing any agreement reached at mediation to a family law lawyer is crucial to finalize your matter. Your family law lawyer will help you turn your settlement into a legally enforceable Separation Agreement. 

A Mediation Report is a summary of the terms of settlement that the parties have agreed upon during their Mediation – often referred to as an agreement to agree. It is not signed. It is not enforceable. During my tenure at a court-based mediation centre, I encountered many former clients that would return to obtain mediation services, as one party was no longer following a previously established “agreement.” Unfortunately, in most cases, former clients would only have a mediation report, which was not legally binding. This could have been avoided had they turned their mediation report into a Separation Agreement. This crucial step will not only ensure that you walk away with a legally enforceable domestic contract, but you will also obtain legal advice, to allow you to feel fully confident that your legal needs and interests have been met and properly documented.

As outlined above, there are a lot of benefits to mediation and some common misunderstandings about the process and the value that the process can provide. Every client’s situation is unique, and the way parties navigate their divorce may require a combination of mediation, collaborative law and traditional court-based litigation, or just one of these approaches. It is important for anyone in the early stages of this process to fully understand the different approaches and work with a divorce lawyer to determine the exact compliment of approaches that suits their circumstances.