How long does it take to mediate a resolution of issues arising from the breakdown of a relationship?
What are the advantages of mediation?
What role do lawyers play in the mediation process?
When do you have an agreement?
What types of issues can we address during the mediation process?

How long does it take to mediate a resolution of issues arising from the breakdown of a relationship?

Unfortunately, there is no simple answer to this question. How long the process of mediation takes before the issues which are in dispute are resolved depends on many factors, some of which include:

• the availability of the parties to meet;
• the level of conflict between the parties to the dispute;
• the number of issues which need to be resolved;
• the complexity of the issues in dispute;
• how quickly the parties can gather information and documentation required for ongoing discussions ;
• whether the parties to the dispute feel comfortable being in the same room or whether they need to be in separate rooms with the mediator who will shuttle back and forth between them or meet with them at separate times altogether;
• the emotional state of each participant;
• the availability of lawyers for ongoing advice if it is required or for advice at the end of settlement discussions;
• the financial resources of the parties; and
• the willingness of the parties to "let go" of the past and move toward discussions about the future to allow for resolution of the conflict.

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What are the advantages of mediation?

During the mediation process, often clients are able to either build a relationship when none existed prior to the mediation process or improve an existing relationship. By communicating in the presence of a third party, often people are better able to express their own feelings and listen, acknowledge and understand the other person's feelings. If the parties have an ongoing relationship of any kind, for example where children are involved, this is a significant advantage.

Agreements negotiated during the mediation process tend to be more creative. Agreements can be tailored to your specific family. Parties are generally able to come up with solutions outside of those which might be imposed by a court or an arbitrator.

In the vast majority of cases, mediation clients incur less cost than those who use the courts to resolve their conflict as there are fewer steps involved in bringing matters to a final resolution.

There is more predictability to a resolution when it is negotiated through the mediation process because the parties control how the dispute is ultimately resolved. Parties feel a sense of accomplishment for choosing their own solution rather than relying on someone to impose one.

Of course, there is great risk involved in allowing a third party to decide important issues which affect your family ongoing. Mediating terms of an agreement allows you to exercise far more control over your lives.

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What role do lawyers play in the mediation process?

In most cases, lawyers do not attend mediation sessions with their clients. Instead, they may provide legal advice to clients before the mediation process begins, during the mediation process itself or after the parties have negotiated a tentative agreement. This is a matter of personal preference for both clients and lawyers. The vast majority of clients are perfectly capable and comfortable attending mediation on their own.

In some cases, however, both lawyers and clients attend the mediation sessions together. The presence of lawyers at the mediation itself allows clients to discuss more complex legal issues about which each client may have received a very different legal opinion. Clients may receive legal advice during the mediation and reach a final settlement at the session.

Lawyers may also attend mediation sessions in situations where the conflict between clients is particularly high or in situations where one or both clients feel vulnerable negotiating on their own. When a court appearance has been scheduled to have a particular dispute determined, it is often helpful for lawyers to participate in the mediation process to assist in resolving outstanding issues quickly.

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When do you have an agreement?

In my experience, it is important for parties to a dispute to have an opportunity to think about the various options which have been discussed during a mediation session. It is important for parties to strike a balance between having an opportunity to fully consider settlement options and not have the mediation process continue for too long a period of time.

In order for parties to have a valid and binding legal agreement, they must have a common understanding of what terms they have agreed to. Each party must also be afforded a reasonable opportunity to review the draft agreement with a lawyer and receive advice about the terms and language of the draft agreement.

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What types of issues can we address during the mediation process?

In the lists set out below, I have described the issues which I most commonly address when working with couples who are in the process of separating or who have already separated.

Parenting Issues
Child support issues
Issues relating to group insurance coverage
Issues related to life Insurance
Spousal support
Property issues

Parenting issues

• whether one parent alone or both parents together will make future decisions about a child's health, education, spiritual / religious upbringing, day care and activities;
• what process the parents will follow in order to try to reach a consensus;
• how much time a child or children will spend with each parent during the school year and during holiday periods;
• what information each parent is entitled to receive from a child's school, doctor, counselor or other professional involved in a child's life;
• what information about the children will be shared by the parents;
• who may attend medical appointments for the children;
• how information will be shared by the parents;
• when information will be shared by the parents;
• who may attend school activities, extra curricular activities, day care facilities, etc.;
• what happens when one parent wishes to move away from the jurisdiction;
• whether a child's surname can be changed and by whom;
• what parenting principles will govern the parents' relationship post-separation;
• whether there should be restrictions placed on the children's contact with a certain individual, the use of drugs or alcohol, certain types of discipline, etc.;
• when travel consents need to be signed and by whom;
• who will retain the children's identification (birth certificates, health cards, passports and social insurance cards); and
• how will future disputes about children resolved.

Back to issues

Child support issues

• how do we determine the income of each parent and their children;
• how are child related expenses shared by parents;
• in what situations is a parent not required to contribute to a child's expenses;
• when is the consent of both parents required before a child related expense may be incurred;
• in what circumstances is a child required to contribute to an expense and how is that obligation determined;
• how are post secondary expenses paid by parents and children;
• to what extent are parents required to contribute to a child's pursuit of post secondary eduation;
• what income information are parents required to exchange ongoing after an agreement has been signed;
• in what circumstances can child support obligations be suspended, varied or terminated;
• how are child support obligations enforced; and
• how are child support payments secured.

Back to issues

Issues relating to group insurance coverage

• who has group extended health, medical, prescription, dental, orthodontic and vision care coverage available either through employment or privately;
• who should cover the children under the terms of a group insurance policy;
• whether a private group insurance policy should be purchased;
• whether only one or both parents should maintain existing group insurance coverage for the benefit of the child or children;
• how monthly insurance premiums for group insurance coverage should be paid and who should pay the insurance deductible;
• what process should be followed to ensure expenses incurred on behalf of a child or children are submitted to the appropriate insurer(s);
• what process should be followed to ensure that the parent who has paid an expense is reimbursed for the eligible portion of the expense;
• how information relating to changes to a group insurance plan should be shared between the parents;
• how information relating to eligibility under the terms of the group insurance plan should be shared;
• when group insurance coverage maintained for children should be changed;

Back to issues

Issues related to life insurance

• who needs to maintain life insurance as security for support obligations;
• how long the life insurance should be maintained to secure support obligations;
• who pays the insurance premiums to maintain life insurance to secure support obligations;
• how much life insurance needs to be maintained;
• who should be named as the beneficiary of life insurance;
• how lapses in life insurance coverage should be dealt with;
• how changes to life insurance coverage should be addressed;
• what happens if someone is supposed to maintain life insurance and dies without having the insurance in force at the time of death;
• in what circumstances can the amount of life insurance which is required to be maintained, be varied;

Back to issues

Spousal support

• in what circumstances is a person is entitled to receive spousal support;
• in what circumstances is a person obliged to pay spousal support;
• how much spousal support should be paid;
• how long does the obligation to pay spousal support continue;
• in what circumstances can spousal support payments be varied, suspended or terminated;
• in what circumstances is spousal support reviewable;
• what are the income tax consequences which flow from various types of spousal support payments;
• how are spousal support payments secured; and
• what happens when someone who has an obligation to pay spousal support dies.

Back to issues

Property issues

• what property rights exist for married couples;
• what property rights exist for common law couples;
• what is a matrimonial home;
• who can live in a matrimonial home;
• who can be excluded from living in a matrimonial home and in what circumstances;
• who owns each asset;
• what assets need to be valued;
• what is the value of each asset;
• how are different types of assets valued;
• who will retain each asset;
• is there any reason to discount the value of an asset;
• how should the value of an asset be discounted;
• what debts are owed by each party as of the date of separation;
• what is the value of each debt;
• who will assume responsibility for discharging each debt, how and when;
• should the value of a debt be discounted for any reason;
• does any property need to be sold;
• under what terms will the property be sold;
• what time frame will be attached to the sale of property;
• who will sell the property;
• does property need to be transferred;
• does the sale or transfer of property attract any income tax consequences and, if so, for whom and to what extent;
• does one party's name have to come off a debt, when will that happen and how;
• what assets did each party bring into a marriage;
• what was the value of each asset on the date of marriage;
• what debts did each party bring into marriage;
• what was the value of each debt