Frequently Asked Questions About Mediation

Why should I consider mediation? 

Mediation puts you in the driver’s seat.  Mediation allows you to control the process and gives you a safe and comfortable environment to talk to your spouse about your needs and interests.  The mediator is neutral, impartial and helps you and your spouse communicate and work toward a respectful resolution of your disputes.  Research studies have shown that children are the clear winners when their parents are able to continue to cooperatively parent even though they are separated.  Mediation facilitates the dialogue between parents and helps them work out the best parenting arrangements for their children.  

How long will mediation take? 

After the initial individual sessions with the mediator, the number of joint session will depend on the complexity of the issues between you and your spouse. The two of you will create your own agendas and with the assistance of the mediator, you will work toward an agreement exploring your goals and interests.  

Will I still need a lawyer? 

Yes, in most cases you will.  It is important to have lawyers on the sidelines to give both you and your spouse legal advice on your rights and entitlements.  Your lawyer is an important resource for you and can provide the necessary legal advice to help you negotiate with your spouse.  Also, your lawyers will review and finalize the agreement reached with your spouse.  Don't forget, your lawyers do not control the mediation process.  You do. 

Will the mediator make decisions? 

A mediator does not make decisions for you or you spouse.  A mediator’s role is to facilitate the communication and discussion for the parties and help them explore their options and develop solutions.  Even though a mediator may be a lawyer, legal advice is not given to either party.  The lawyer/mediator may educate the parties regarding the law and provide general information, but he/she doesn’t tell the parties what to do or make decisions for them. 

Does mediation cost less than going to court? 

Most definitely!  The savings are not only financial but also emotional.  Mediation helps couples look toward the future and not dwell on the past.  The court process deals with the negative aspects of the past and by its very nature, creates winners and losers.   Mediation allows couples to resolve their disputes in a respectful fashion and considers the needs and interests of each person and their children.    

After my separation, I’m feeling that things have gotten out of control. How will mediation help? 

Mediation, by its very nature, gives you the opportunity to take control of your lives and the lives of your children.  You make the decisions about how you will deal with your financial assets and how you will parent your children.  Mediation gives you the forum to regain control and the mediator creates a positive environment for you to become empowered and forward looking.  Litigation is the opposite.  You lose control to the lawyers, who speak for you and to the judges, who make decisions for you and your children. 

Why should I consider a mediator who is a lawyer?

A mediator who is also a lawyer will have an understanding of the laws relating to property division, financial support and custody on marriage breakdown. Although the lawyer/mediator doesn’t specifically give advice to either party, they can give a lot of legal information to help separating couples reach agreements. The lawyer/mediator can outline the legal structure to help couples reach agreements that work best for them and their families. Within the legal framework, couples have much more flexibility and control in mediation to reach cost-effective agreements. Also, the lawyer/mediator will know professional valuators and property appraisers and, if necessary, they can be contacted to jointly help separating couples arrive at values of their various assets.

Most importantly, the mediator who is a lawyer can prepare the Separation Agreement for the couple as he/she will know what needs to be included to create a legally binding agreement. This benefit can result in a huge time and cost saving for the couple.

How do I decide if a mediator is right for me and what qualities should I look for in a mediator?

A mediator should take time to speak with both you and your spouse – at first, usually by phone or by individual meetings. Further, throughout the joint mediation sessions:

  • You need to feel comfortable with the mediator and not be afraid to ask questions.
  • The process should be fully explained to you and you should feel free to ask questions and find out what this mediator can offer you and your spouse.
  • The mediator should be empathic and a good listener throughout the whole mediation process – even with the initial phone call. You need to feel that the mediator understands your interests and needs. Also, it is important to feel that the mediator understands your spouse and their issues.
  • You need to ask them about their training and experience – this is very important as there is no professional regulatory body for mediators.
  • One of the most important factors is rapport – do you sense a connection with the mediator? You need to feel that you can trust the mediator to be impartial and unbiased.
  • You will need to feel safe in the mediation room – safe enough to tell your spouse what it is that you want and why. You need to feel that your voice is heard by the mediator and your spouse. It is up to the mediator to create an environment where this happens.
  • One of the most important tasks of the mediator is to help you communicate with your spouse – to help each of you get all your issues and concerns on the table and then help you deal with each one of them.
  • A good mediator will offer creative solutions to help you and your spouse resolve difficult issues.

Generally, you have to feel that it is a good fit – often hard to describe, but you know it when it happens. A good mediator will create a seamless process that takes you to a final agreement. Although mediation is hard work, you leave with a sense that you have created a steady path for the future and accomplished something that is beneficial to you and your family.

Are there any benefits in mediating early, soon after a separation?

Yes, definitely. Mediation will help keep communication open between you and your spouse. In mediation, you and your spouse are the ones doing the talking and directly dealing with your issues (not your lawyers). You might think that you can’t talk to each other or that anger and emotions will prevent the two of you from being able to communicate, but with help, you can.

Even though you are still struggling with emotions, it’s the role of the mediator to facilitate or help the two of you have constructive discussions about those things that are important to you, i.e. developing a parenting structure for the children; dividing property; determining how much child or spousal support needs to be paid. Getting this conversation going between the two of you early after your separation lays the groundwork for all of your future discussions.

The mediator will help you negotiate a fair agreement but more importantly, will help you talk to each other. Although it may still be painful for you to have these discussions, in the long run, it is far less painful than getting into a long, expensive legal battle with your spouse. The goal is to get you talking and communicating earlier rather than later. It is much harder to get you and your spouse communicating constructively after you have been through a destructive, expensive court battle.

Remember, it’s much easier to build solid long lasting bridges rather than to try to rebuild or patch up broken down and malfunctioning ones!

© 2008 Milka Vujnovic
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