Mediation according to the Black’s Law Dictionary, 7th Edition, West Group, St. Paul, Minn., 1999 is “[A] method of nonbinding dispute resolution involving a neutral third party who tries to help…disputing parties reach a mutually agreeable solution.
Family Law Mediation is a process that is voluntary entered into by couples who are in the midst of separating in order to try and resolve some or all of the issues raised by their separation.
A mediator is a trained neutral third party whose role is to assist couples entering the mediation process to do the following:
- Agree on what the issues that need to be resolved are;
- Decide what issues the parties want to resolve,
- Frame the issues to be resolved during the course of the mediation;
- Enter into a dialogue that will result in the bringing out of relevant information that will help resolve the issues to be mediated
- Determine what financial disclosure is required to be provided by each party;
- Understand each other’s point of view and share with one another their aspirations, goals and needs; and
- Develop an array of settlement options that will assist the parties’ in coming to a mutually satisfactory agreement
Mediation Intake Sessions
When a couple enters into the mediation process they begin by individually attending and intake session with the mediator they have mutually agreed to use to conduct the mediation. During the course of the initial intake session the mediator will meet with each spouse to discuss what their individual aspirations, goals and needs are and assess, either through the course of the intake session or through the use of screening tools, the capacity of each spouse to negotiate.
If during the course of the mediation Intake session either one or both of the spouses advises that they have not consulted with and/or retained counsel to advise them I provide them with a list of lawyers that they can either consult if they want or that they can take the Memorandum of Understanding, if one is achieved as a result of the mediation, too in order to review and have turned into a binding legal agreement.
In family law mediation there are 3 different approaches mediation models that can be used, which are outlined by Kenneth Cloke in his book “Mediating Dangerously: The Frontiers of Conflict Resolution”. The 3 approaches are as follows:
- The evaluative or directive approach is a model whereby a mediator works to end the conflict that has arisen either during their relationship and has led to their separation or has arisen as a result of the parties’ separation. This approach views the spouses who have entered into mediation as being unable/incapable of ending their conflict by themselves. In this model the mediator tries to direct the parties’ towards a settlement, which is the model that is commonly used in negotiations between lawyers and by family court judges.
- The facilitative or conciliatory approach sees a mediator work with the spouses to try and overcome the conflict that has arisen either during their relationship and has led to their separation or that has arisen as a result of their separation through encouraging the spouses to engage in active listening and describing their feelings during the mediation process. In this model the mediator tries to model and facilitate the spouse’s interactions so that the spouses can hopefully reach a settlement that can be turned into a Memorandum of Understanding.
- The transformational approach to mediation is an approach whereby a mediator through the use of empathy elicits recognition from each spouse of the other spouse’s genuine feelings/concerns/issues that they have as they work through the separation process. In this model the mediator works to empower the spouses to solve the issues that have arisen either during their relationship and has led to their separation or that has arisen as a result of their separation and present solutions to those issues that can be used in drafting a legally binding separation agreement.
At Shawyer Family Law and Mediation we use the facilitative or conciliatory approach to mediation by providing an environment where each spouse feels, respected and understood and can enter into an ongoing dialogue with their former partner to try and resolve the issues has led to their separation or that has arisen as a result of their separation. During the course of mediation we provide legal information to the spouses, including information about relevant statutes and case law as it relates to all legal issues including but not limited to Custody, Access, Child Support, Spousal Support and Division of Net Family Property. If need be, during the course of the mediation process we also assist the parties by providing them with a list of professionals that they can either retain individually or jointly for the purposes of assessing income for support purposes and valuing property, pensions, and business.
The number of mediation sessions that will be needed to by the parties’ varies based on the issues and dynamics between the parties. However, generally spouses will usually engage in 4 – 6 mediation sessions that generally last 2 hours in length each but can last longer or be shorter depending on how each mediation session progresses.
If required we will circulate progress notes, by way of a Memorandum of Understanding, after the mediation session that outline the topics discussed, any tentative agreements reached and any information required to be provided by either or both parties’ either at or prior to the next mediation session. If parties’ ultimately are able to reach either a comprehensive or partial settlement we prepare a final Memorandum of Understanding that incorporates the terms that the spouses have agreed upon, which can be used by the parties’ to draft minutes of settlement or a separation agreement.
Benefits of Mediation
At Shawyer Family Law and Mediation we advocate the use of mediation as one of the primary ways for separating partners or spouses to resolve the issues that have arisen between them because it allows them to retain control over the decisions that have to be. Mediation is also beneficial as it allows separating partners or spouses to come up with solutions that will be workable for their lives as opposed to being forced into agreements that will not necessarily work for them.