Family law mediation can offer a low-conflict approach to arriving at a settlement agreement. It is ideal for people who do not want to be embroiled in costly and lengthy litigation and who recognize the many benefits of negotiating the terms of their own separation agreement.
Here are a few answers to some of the most common questions people have about this option:
1. Do I need a lawyer to participate in mediation?
You can participate in mediation on your own or with your lawyer. If you choose to participate in mediation without legal representation, it is strongly recommended that you obtain independent legal advice from a lawyer who can review your draft agreement with you, highlighting aspects that may vary from the standard legal model and explaining your rights and obligations under the agreement.
2. Does the mediator represent me, or my spouse?
Neither. The mediator is a neutral facilitator who is looking to the interests of both spouses. The cost of mediation is usually split equally by the two parties.
3. Does the mediator provide legal advice?
The mediator cannot give legal advice, but can explain the law and options with respect to issues that arise during the mediation.
4. Does the mediator decide on our outstanding issues?
No, the mediator does not make decisions on your unresolved matters. What the mediator will do is assist you and your spouse in identifying terms for your separation agreement that are mutually acceptable.
5. How long does the mediation process take?
The time required will be determined by the number of issues to be resolved (for instance, are there parenting questions to address? Is there a joint business?). If you and your partner agree on some or many issues, the process can be wrapped up relatively quickly – certainly more efficiently than pursuing a court-based option.
6. What is the difference between mediation and collaborative family law?
Both mediation and the collaborative process offer you and your spouse the opportunity to cooperatively determine the terms of your separation agreement and control the outcome. Additionally, both processes offer privacy, as well as cost- and time-savings.
In mediation, unlike the collaborative process, you are guided by a neutral facilitator and you can participate without a lawyer if you choose. In collaborative family law, both spouses have a lawyer present to provide them with support and tailored advice.
7. Can I opt out of mediation if it doesn’t work?
Yes, you can always opt out of a mediation process to pursue a different approach to reaching a separation agreement. It is important to note that what was discussed in closed mediation cannot be used outside the mediation process.
8. Is a settlement agreement arrived at through mediation binding?
A separation agreement achieved through mediation is legally binding and can be enforced by the courts if necessary. If you or your spouse is not represented by a lawyer during mediation, you will be strongly encouraged to seek independent legal advice before you sign the agreement so that you are clear on your rights and obligations.
Caspar van Baal practices family law in Ottawa, Ontario, Canada. He is an accredited mediator and member of the Ontario Association for Family Mediation. For more information go to www.vanbaalfamilylaw.com.