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Difference between revisions of "Family Law Mediation"
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Next, the parties and the mediator will agree to a schedule of meetings, the ground rules for these meetings and the objects or goals of the process. Sometimes the decisions as to ground rules and goals are left to the parties themselves; it is their process, after all, not that of the mediator. If the parties are using lawyers, this step may be left out since ground rules aren't required or because the lawyers will be able to agree on the ground rules among themselves. Whether there are multiple meetings or not depends largely on the parties and the number of issues outstanding. Often a single half- or full-day meeting will produce a settlement. | Next, the parties and the mediator will agree to a schedule of meetings, the ground rules for these meetings and the objects or goals of the process. Sometimes the decisions as to ground rules and goals are left to the parties themselves; it is their process, after all, not that of the mediator. If the parties are using lawyers, this step may be left out since ground rules aren't required or because the lawyers will be able to agree on the ground rules among themselves. Whether there are multiple meetings or not depends largely on the parties and the number of issues outstanding. Often a single half- or full-day meeting will produce a settlement. | ||
===Exchanging | ===Exchanging Information=== | ||
The parties will then begin to assemble the documents required to explain their separate financial situations. Normally this will consist of simply completing a formal Financial Statement, court form also used in litigation that sets out each party's income and expenses, and assets and debts. Supporting documents will have to be gathered as well, which will ususally consist of things like: | The parties will then begin to assemble the documents required to explain their separate financial situations. Normally this will consist of simply completing a formal Financial Statement, court form also used in litigation that sets out each party's income and expenses, and assets and debts. Supporting documents will have to be gathered as well, which will ususally consist of things like: | ||
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===Exchanging Briefs=== | ===Exchanging Briefs=== | ||
Where the parties are represented by lawyers, the mediator may ask the lawyer to prepare "mediation briefs." Mediation briefs are summaries of the parties' relationship and each party's position and, when a position is legally complex or technical, an explanation of the law or facts supporting that position. The lawyers will give copies of their briefs to each other and to the mediator ahead of the first mediation session. | |||
=== | ===Mediating the Dispute=== | ||
Once all the information | Once all the information, reports and briefs have been gathered and exchanged, and everybody's had a chance to digest everything, the parties, the lawyers and the mediator will meet at one or more mediation sessions. The mediator will first welcome everyone to the table, and ask the parties to sign a mediation participation agreement before anything else happens. The mediation agreement sets out the terms of the mediation sessions, requires the parties not to use the discussions held during mediation in any litigation, and describes the terms on which the mediator will be paid. | ||
After signing the mediation agreement, each mediator will have his or her own preferred way of doing things. Most will ask someone to provide a general overview of the relationship and describe what exactly is at issue. Each party will have the opportunity to state their position on things. If lawyers are being used, they will inevitably do most of the talking, but the parties themselves will have ample opportunity to speak their minds... and they really should, it's their dispute! | |||
Once this initial exchange of positions is complete, the mediator may keep everyone in the same room or may split the parties into separate rooms. If the parties are kept together, the mediator will press on and work on the problem issue by issue. The mediator will keep some control over how the discussion flows, tamp the emotions down when things get heated, and keep everyone focussed on their interests and the law rather than their emotions and the grievances of the past. If the parties are split into separate rooms, the mediator will alternate working with each party and will shuttle between each of the rooms. | |||
Assuming the mediation process is successful, the mediator will often prepare a list describing how each issue has been resolved called "minutes of settlement." The minutes are usually rather informal and are meant to record the bare bones of the settlement in the expectation that a more complete document, like a separation agreement or a consent order, will be prepared in the future. The parties and sometimes their lawyers will be asked to sign the minutes to acknowledge the settlement that was reached. | |||
Assuming the mediation | |||
===Formalizing the Agreement=== | ===Formalizing the Agreement=== | ||
The final stage involves the | The final stage involves the putting the terms of the agreement into more formal language in a legal document which both parties, or, depending on the type of document, their lawyers will sign. Typically, a settlement will be recorded as a separation agreement or, if there is an existing court proceeding or the parties need to get divorced, an order that the parties agree the court should make. | ||
If a party changes his or her mind before the separation agreement or consent order is filed, the minutes of settlement can be enforced in court as evidence of the deal reached between the parties. In fact, in certain circumstances the mediator's notes alone may stand as proof of the parties' agreement. As long as it is plain what has been agreed to and that the intentions of the parties were finally settled, the minutes or the mediator's notes can be used as evidence of a binding agreement. | |||
Note that if you are relying on a mediated settlement in court, it is important that the settlement be conclusive and leaving nothing else for further negotiation or confirmation. In the 2005 British Columbia Supreme Court case of ''Alcock v. Alcock'', the court held that the parties couldn't rely on an agreement that was "subject to confirmation" as a final, binding agreement. In that case, the agreement was subject to the wife producing financial information which, when produced, did not confirm the information provided at mediation. | |||
==Tips for Successful Mediation== | ==Tips for Successful Mediation== | ||