Here you will find a list of the questions that are the most commonly asked. If you can't find the information you are looking for, I invite you to contact me to discuss the process you are considering and how I might help you resolve issues which are important to you.
What are the Advantages of Mediation?
The mediation process can be launched very quickly. It may begin as soon as both parties agree to mediate a dispute.
Mediation is a private process as compared to court proceedings, which are public.
The mediation process can proceed as slowly or as quickly as is appropriate to a particular family, unlike the court process, which is governed by rules which require that certain steps be taken within a prescribed time-frame.
Mediation is a process which provides the parties who are most affected by the dispute with the opportunity to decide its outcome. It allows parties to avoid the risk inherent in having a third party make decisions about important issues which flow from a separation. When effective, it is preferable to court proceedings through which a third party will impose a solution on the family.
Agreements negotiated through mediation tend to be more creative than court orders because they can be tailored to meet the individual and unique needs of each family.
A mediated agreement is much more likely to incorporate a broader set of interests and meet the individual needs of every member of the family because the negotiation takes place over time and clients have the opportunity to take the time that they need to adequately consider various options for resolution. People can take a break from mediation to process information and consult with lawyers, financial advisers and other professionals. Court proceedings tend to have a more fixed time-line.
A mediated agreement is much more likely to be seen as fair as compared to court orders which often reinforce the notion of “winner” and “loser.”
Through the facilitated discussions which take place in mediation, parties are often able to discuss very difficult issues and gain insight into the dynamic inherent in their relationship. Often, parties are able to reduce conflict between them and improve their communication.
During mediation, parties have the support that they need to bridge the differences in their thinking so that they are able to successfully co-parent their children.
For the vast majority of clients, mediation is far more cost-effective than other dispute resolution processes, including negotiations between lawyers and court proceedings because a neutral facilitator is working together with both parties and fewer steps are required to resolve issues.
Clients often experience a huge sense of accomplishment when they successfully negotiate an agreement. Their success provides them with increased confidence as they move forward, either towards personal independence or to co-parent their children.
What Role do Lawyers Play in the Mediation Process?
It is both the right and the responsibility of clients to decide when to seek legal advice, if at all. Generally, when clients are engaged in the mediation process, lawyers may assume one or more of the following roles:
- Lawyers may provide clients with a legal opinion and legal advice before the mediation process begins.
- During the mediation process, if it becomes clear that parties are unable to resolve one or more issues, lawyers may be asked to provide clients with legal advice after they have had the opportunity to review the information and documentation that has been produced during the course of the mediation process.
- In many situations, lawyers attend mediation sessions with their clients. This practice (known as “lawyer-assisted mediation”) is common when the legal issues which are being addressed during the process are legally and / or factually complex, if one or both clients feel vulnerable or if there is significant conflict between the parties.
- Lawyer may become involved only at the end of the mediation process at which time they review the terms of the draft agreement and provide independent legal advice to their individual clients about both the substantive terms and the way in which the contract has been drafted. Although there is no formal legal requirement that each party receive independent legal in order for a contract to be binding, it is prudent for each party to review a contract with a lawyer before signing it.
What Issues Are Generally Addressed in a Separation Agreement?
The circumstances of each family will dictate the type of agreement that is negotiated during the mediation process. There are typically four types of agreements which may be negotiated following the breakdown of a relationship.
A temporary agreement generally addresses issues on a short-term basis, while the parties complete their negotiation of a final agreement. For example, the parties may have sold their home, however, they may not yet agree about parenting arrangements. As a result, they may choose to enter into a temporary agreement through which they create a short-term parenting schedule and agree about where the children will attend school, daycare arrangements and the children’s extra-curricular activities. They may also agree about short-term support arrangements while they exchange detailed information and documentation about their incomes and expenses.
Temporary agreements are often entered into on a “without prejudice” basis which means that they are more like a “band-aid”. They reflect an arrangement which is not intended to be comprehensive or binding in the long-term. Instead, it is intended to provide the parties with a short-term arrangement. Entering into a temporary agreement is likely far less expensive than starting a court proceeding and asking for a temporary court order and it accomplishes the same goal.
Temporary agreements may be in place for a few weeks or a period of months, depending on what process the parties undertake to resolve matters on a final basis.
The following issues are commonly addressed in a temporary agreement:
- temporary occupation of a matrimonial home (married parties) or a family home (common-law parties);
- temporary parenting arrangements for children;
- temporary child support arrangements;
- temporary spousal support arrangements;
- temporary health and dental insurance coverage for the family;
- temporary obligations to make specific beneficiary designations on existing life insurance policies or to purchase new life insurance coverage to secure temporary child and spousal support arrangements;
- temporary arrangements which define responsibility for paying expenses relating to the children (daycare, school fees, extra-curricular activities), the family home (mortgage, secured line of credit, property taxes, utility expenses, repair and maintenance expenses), personal debt owned by either party (car loan, credit cards, personal debt, income tax liability);
- arrangements for the parties to retain experts to complete reports relating to children, the valuation of pensions, business interests or property and the income available to one or both parties;
- identifying next steps for parties and lawyers, to assist the parties with moving forward in their negotiation of a final agreement.
A partial agreement resolves some, but not all issues, on a final basis. It leaves other issues to be resolved through further mediation, arbitration proceedings or court proceedings. For example, parties may agree about parenting arrangements, however, they may be unable to agree about support arrangements or how to address property issues. Rather than walk away from mediation without resolving any issues at all, they restrict the terms of their agreement to what is in fact agreed to so that they may either continue in mediation to complete their negotiation or have disputes about the outstanding legal issues resolved through arbitration or court proceedings.
A partial agreement may include one or more of the following:
- a final parenting plan;
- final child support arrangements:
- final spousal support arrangements:
- final arrangements regarding health and dental coverage for the family:
- final arrangements regarding the level of life insurance that must be maintained to secure support obligations;
- the terms on which property will be appraised or sold;
- final terms which define the assets and debts which will be retained by each party.
Ultimately, the resolution of all of the issues which arise from a separation should be confirmed in the terms of a written agreement. If the parties are able to resolve all of the issues through mediation, they enter into a final agreement.
The following is a non-exhaustive list of the issues which are generally addressed in a comprehensive final agreement entered into as a consequence of a separation:
- whether one or more than one parent will have the legal authority (custody) to make decisions relating to a child’s education, health, religious and spiritual upbringing, daycare and general well-being;
- if more than one parent has the legal authority (custody) to make decisions relating to a child’s education, health, religious and spiritual upbringing, day care and general well-being, how disputes between them relating to these issues will be resolved;
- how much time the children spend with each parent:
- when and where the transitions in the children’s care will take place;
- what information about children the parents are required to share:
- how information about children is shared between parents;
- each parent’s right to receive information from the children’s school, doctor, therapist, counselor and other professionals;
- the scheduling of and parental attendance at children’s healthcare appointments:
- the children’s registration in extra-curricular activities:
- attendance at the children’s daycare, school events and their extra-curricular activities:
- whether a child’s name may be formally changed:
- whether there may be restrictions imposed on where the parents may live in order to facilitate the children’s relationships with each of them;
- the children’s travel;
- the children’s identification documents.
- the determination of parental status:
- the determination of the income which is available to each parent;
- if applicable (for adult children), the determination of the children’s incomes;
- the monthly amount of child support, if any, that is owed by one parent to the other;
- the monthly amount of child support, if any, that is owed by one or both parents directly to the child;
- the child-related expenses that parents are required to share;
- the method by which child-related expenses that the parents are required to share will be paid;
- the contribution, if any, that children are required to make to their own post-secondary education expenses;
- the documentation and information parents are required to share about their incomes;
- the frequency with which adjustments may made to parents’ contributions to the children’s support;
- the manner in which adjustments to the children’s support will be made and how disputes relating to adjustments will be resolved;
- the means through which each parent’s obligation to contribute to the children’s support are secured;
- the means by which child support payments are addressed when a parent dies;
- the means through which child support payments are actually paid;
- enforcement of child support payments;
- the circumstances in which the obligation to contribute to a child’s support ends.
- the basis upon which either party may be entitled to receive spousal support;
- the determination of both parties’ incomes;
- the amount of spousal support to which either party may be entitled and how spousal support obligations will be met;
- the income tax consequences, if any, associated with spousal support payments;
- the circumstances in which a spousal support obligation may be varied (increased or reduced), suspended or terminated;
- the means by which spousal support payments are actually paid;
- enforcement of spousal support payments;
- the means through which spousal support payments are secured;
- the means through which spousal support payments are addressed if the party who is paying spousal support dies;
- the review, adjustment, suspension and termination of spousal support obligations;
- the means through which disputes relating to spousal support will be resolved;
GROUP HEALTH AND DENTAL INSURANCE
- group extended health, medical, prescription, dental, orthodontic and / or vision care coverage for the family;
- the allocation of responsibility for paying group health and dental insurance premiums;
- the circumstances in which a party who is not the plan member may submit claims directly to an insurance company;
- the method by which insurance claims should be submitted to more than one insurance company;
- the method by which a party who pays an expense which is eligible for insurance reimbursement will be reimburse by the insurance company or the plan member;
- the method by which expenses which are not eligible for reimbursement by an insurance company and which are incurred for the benefit of a party are accounted for and paid;
- the impact of a divorce order on insurance coverage for spouses;
- the circumstances in which the obligation to maintain group health and / or dental insurance coverage for any family member may be changed.
LIFE INSURANCE COVERAGE
- the determination of available life insurance coverage;
- the amount of life insurance that is required to secure child support and / or spousal support obligations;
- the allocation of responsibility for paying life insurance premiums relating to policies which are in place to secure support obligations;
- the circumstances in which the level of life insurance required to secure a child and / or spousal support obligations may be increased or reduced or in which the obligation to maintain life insurance at all will be suspended or terminated;
- who should be named as the beneficiary of the life insurance coverage; and
- the consequences of the owner of a life insurance policy allowing the policy to lapse or cancelling the policy.
- occupation, sale or transfer of ownership of the matrimonial home;
- the division of assets (household contents, vehicles, non-registered and registered savings, pension, real estate and corporate interests);
- the division or allocation of responsibility for paying debts (mortgage, line of credit, credit card, car loan, income tax liability); and
- the determination of the amount of an equalization payment owing by one party to the other in order to settle property rights and the determination of when and how will it will be paid.
- occupation, sale or transfer of ownership of the family home;
- the determination of ownership rights relating to assets legally registered to only one party;
- the division or transfer of assets;
- the division or allocation of responsibility for paying specific debts; and
- the determination of the payment which one party may be required to pay to the other and the determination of when and how will it will be paid.
When circumstances change, parties may need to revisit an existing agreement. They may negotiate an amending agreement which reflects the revised terms. The balance of their existing agreement will remain binding on them.
The following issues may be addressed in an amending agreement:
- a change to an existing parenting schedule;
- a change to any of the decisions which have been made for a child’s benefit (i.e. daycare provider, healthcare provider, school, extra-curricular activities, counselling or therapy);
- an adjustment (increase or reduction) to child support arrangements which were in place during a previous calendar year;
- an adjustment (increase or reduction) to ongoing child support payments:
- the temporary suspension of child support obligations:
- the termination of child support obligations;
- an adjustment (increase or reduction) to spousal support arrangements which were in place during a previous calendar year;
- an adjustment (increase or reduction) to ongoing spousal support payments;
- the temporary suspension of spousal support obligations;
- the termination of spousal support obligations;
- a change to the level of life insurance coverage that a party is required to maintain in order to secure support obligations; and
- a change to the obligation assumed by one or both parties to maintain health or dental insurance coverage for the family.
How Long Does the Mediation Process Take?
The amount of time that it takes for parties to identify the legal and practical issues which flow from the breakdown of their relationship and negotiate an agreement which resolves all of the issues relevant to their family depends on a number of factors, which include:
- whether the parties have been separated for a long time or are only recently separated;
- how each party is processing the grief associated with the separation;
- each party’s emotional state and their capacity to:
- provide relevant information and documentation to the mediator;
- understand the information and documentation that is shared during the mediation process
- actively participate in the discussions that take place during mediation
- consider their own interests and what resolutions may fairly address their interests
- make informed decisions about settlement
- the willingness of the parties to meet and their availability;
- how quickly parties are able to obtain the information and documentation they require to discuss the issues which ultimately need to be addressed in their agreement;
- the number of issues which need to be addressed during the mediation process and how closely aligned or polarized the parties’ views are about how the issues should be resolved;
- the legal and factual complexity of the issues, which may require the parties to consult with lawyers, actuaries, accountants, business valuators or parenting assessors, and the amount of time that the experts require to complete any necessary reports;
- the level of conflict between the parties and how much time they spend discussing the issues;
- the willingness and ability of the parties to shift the focus of their discussions away from past conflict and to refocus their discussions on resolutions which incorporate the interests and concerns raised by both parties;
- the parties’ financial resources;
- the availability of lawyers to provide legal advice before, during or at the end of the mediation process.
When do Parties Have a Binding Agreement?
Decisions which are made following a separation are important decisions and careful consideration needs to be given to all of the options that are available to each family so that both parties have the opportunity to understand the short-term and the long-term consequences of choosing various options over others.
It is essential that both parties have adequate time to consider all available options without being pressured into making decisions too quickly or decisions which do not meet their short-term or long-term interests. Agreements need to be fair to both parties and reflect the specific circumstances of the relationship.
For a legally binding agreement to exist, the following criteria must be met:
- Both parties must have a common understanding of the specific terms of their agreement.
- While it is preferable that both parties receive independent legal advice about the proposed terms of the agreement, there is no legal requirement for anyone to receive legal advice before signing an agreement. What is required, however, is that each party be given the opportunity to consult with an independent lawyer who has been provided with all of the relevant information and documentation about the family’s circumstances so that the lawyer is able to provide a valid legal opinion about the rights and obligations which are addressed in the agreement.
- The agreement must be in writing, it must be dated, it must be signed by both parties and both parties’ signatures must be witnessed by a competent adult (preferably a different witness for each party).