By: Lorne Fine
Question: What is Mediation? Is it right for me?
Answer: Mediation is a form of dispute resolution. It is a form of negotiated settlement. A mediator is a neutral third party. He/she will facilitate a resolution of the issues and attempt to arrive at a settlement that works for both parties. Lawyers often say that the “best negotiated settlement is when both parties walk away from the table thinking the other person got the better deal”. If a matter is going to be settled by way of a negotiation, neither party is going to get everything they want. There has to be some “give and take” if there is going to be a settlement. It is important for the parties to be on a “level playing field” (i.e. no history of abuse or violence) and able to express their opinions if the mediation is going to be effective.
There are usually five stages to mediation:
Stage 1: Introductions
Mediator introduces themselves and explains the rules for mediation (i.e. act courteous to each other, no arguing, take turns speaking, either party or the mediator can terminate at any time etc.)
Stage 2: Listen and Clarify the Stories
Mediator asks the parties to present their story and clarifies any of the facts
Stage 3: Clarifying the Problem
Mediator clearly restates the underlying concerns of each disputant (i.e. “Am I hearing you correctly when I hear you say …) and identifies the issues to be examined
Stage 4: Finding Common Ground
Mediator asks the parties what they feel needs to happen in order for the conflict to be resolve
Mediator hears the suggestions that each party makes and asks for their opinions on the suggestions
Check to see if there is a mutual agreement for a solution. If so, restate it to ensure both understand and agree. Mediator then writes out the final resolution.
If there is no mutual agreement, Mediator can meet with each party individually and review what they would like to see happen
Stage 5: Final Stage of Mediation
Mediators check with the parties to see that they understand the agreement
If there is an Agreement, Mediator may draft the Agreement or Memorandum of Understanding
For any dispute brought to mediation, mediators can approach the mediation using one of the following mediation styles:
Evaluative Mediation – This is when the mediator evaluates your position and voices his/her opinion as to what a judge would do in the circumstances. The mediator then attempts to arrive at a solution that addresses each of the parties legal rights (as opposed to their interests), The parties have less control in arriving at a resolution of this matter;
Facilitative Mediation – The disputing parties maintain control over the process. Unlike Evaluative Mediation, the mediator will not voice his/her opinion as to how to resolve the issues. The mediator searches for underlying interests and facilitates the parties at arriving at options in order to generate a solution to their issues.
There are several methods of resolving the issues arising from the separation from your partner through mediation. Firstly, you and your partner can retain a mediator to facilitate a resolution of the issues. It is important to note that the mediator will not act as the lawyer for you or your partner. If the Mediator is using an evaluative form of mediation, he/she may advise what he/she thinks that a judge will do, but the Mediator will not give you legal advice. The Mediator will insist that once there is a final resolution on all of the issues and the terms are incorporated into an Agreement, that each party obtain “independent legal advice” to confirm that each party acknowledges their rights and obligations under the Agreement and that they are signing the Agreement voluntarily. Secondly, it is also possible for each party to have his/her lawyer during the mediation and the mediator will act as a neutral third party to try to facilitate a resolution of the issues. If an Agreement is reached, the parties each review the Agreement with their own lawyer. This process is helpful when the parties each have lawyers and require a third experienced party to try to assist them in bridging their differences and thinking of creative solutions to address the interests of both parties.
There are several reasons why mediation is usually a good option for a resolution of the issues arising from the parties separation, namely, as follows:
1. Cost – The parties will share the cost of the mediation. It is cheaper than each party retaining his/her own lawyers. The parties will not have the bear the cost of numerous letters between their respective lawyers, court appearances etc.
2. Speed – Mediation is much faster than litigation. Court proceedings may last for years. Mediation utilizes a series of meetings (with all parties or just the mediator separately with each party) in order to attempt to arrive at a solution to the parties issues;
3. Control – Unlike court proceedings, in mediation you are not asking a third party to impose a solution to your problems. You are working with the opposing party to arrive at a solution that is mutually agreeable. Since you are working with the other party, mediation is not a recommended dispute resolution system if there is a history of abuse or violence as between the parties.
Mediation is a voluntarily process. A mediator cannot force a resolution to your issues. However, it is usually cheaper and faster and less stressful than the headaches that are usually associated with court proceedings.
The Lawyers of Fine & Associates Professional Corporation practice only Divorce and Family Law in Ontario. They are knowledgeable about all aspects of Divorce law, including, but not limited to, child support, child custody, and property division. They pride themselves on their knowledge of the various courts in Ontario and, have litigated many different cases. In every case, their focus is on their clients and they are dedicated to aggressively protecting their rights so that all matters are resolved quickly and fairly.
The information herein is provided for information purposes only, is not intended as legal advice, and should not be relied upon as legal advice. If If you have any questions, regarding family or divorce law see www.Torontodivorcelaw.com . You can also contact Lorne Fine at 416-661-2066 or [email protected] . com..