My Role as a Mediator
As a mediator, I am a neutral person. My role is to facilitate your discussions and help you decide how your dispute should be resolved. I have no power or authority to impose a solution.
With more than 28 years of experience working in the field of family law, I am able to provide you with a great deal of information about the legal and practical issues which common-law partners and married partners typically address in their separation agreements. I cannot, however, provide you with a legal opinion or legal advice about your rights or obligations. Instead, I will refer you to appropriate professionals for the advice that you need in order to feel confident that the settlement terms you have agreed to are appropriate for you and your family.
I take pride in having strong interpersonal skills, empathy, confidence and a sense of humour. These skills, combined with a solid understanding of the law relating to the issues which are typically addressed in the negotiation of a separation agreement allow me to work effectively with clients. I recognize how important it is for clients to feel confident that the terms of their negotiated settlement comply with current law. If clients choose to negotiate an agreement with provisions which are outside the scope of mainstream thinking, it is equally important for them to feel that same level of confidence that the terms, perhaps unique to the family or to the situation, will be upheld in the long term.
Every family mediation is different for a number of reasons:
The relationship dynamic between parties who are separating is unique and it shifts as people move through the various stages of grief associated with a separation.
Sometimes parties who have separated very recently have less capacity to participate in a negotiation because they are in the very early stages of grief and are unable to concentrate, process information and make informed choices. Illness, addiction, stress and anxiety may also impact the ability to participate in mediation.
Parties who choose to use the mediation process as a first step are often more invested in building a resolution together from the very outset of their negotiations than those who have already been involved in conflicted negotiations or court proceedings.
Parties who enter mediation only after being involved in hotly contested court proceedings tend to be more entrenched in firm positions about how issues should be resolved and, as a result, they may need more time to negotiate resolutions which reflect both parties’ interests and bridge the differences in their thinking.
The mediation process may be quite smooth if the parties have only a few relatively straight-forward issues to address.
If the parties need to address issues which are legally or factually complex, they may need to retain experts along the way to provide them with assistance. If parties have many highly-disputed issues to resolve, their negotiation may be longer and more intense.
Ultimately, the level of conflict between parties will dictate how the mediation process is structured, how many mediation sessions are required for the parties to resolve issues and who participates in the mediation sessions.
Despite the differences in how the mediation process for a particular family may ultimately unfold, the following are the basic steps in my mediation process and they are the same for all parties:
I meet with all clients separately as the first step in my mediation process because I firmly believe that individual intake meetings are essential to a successful mediation for the following reasons:
Many clients feel anxious about starting the mediation process and putting their trust and confidence in a complete stranger at such a vulnerable time in their lives. They may feel uninformed about the legal and practical issues that flow from a separation and about the mediation process itself.
As a practical matter, attending a brief intake meeting before the mediation process begins permits clients to find my office, locate parking, meet me and see the space where the mediation sessions will take place. Clients who attend at the office for the first time on the day of the mediation session may get lost, be unable to find parking and may arrive late, feeling scattered, vulnerable, anxious and unable to concentrate on the initial discussions.
Having the opportunity to meet with each client individually allows me to gather a significant amount of information about:
the client’s age, mental and physical health, education, employment history;
other members of the family or extended family;
the timing and circumstances of the breakdown of their relationship (who initiated the separation, how recent the separation is, whether the parties are still living in the same home);
a description of the roles assumed by each party throughout the relationship;
the client’s support system and the potential need for a referral to counselling or therapy or other support services;
the nature of the parties’ relationship (common-law or marriage);
each party’s educational background;
each party’s work history;
the income which is currently available to each family member;
the children (ages, daycare arrangements, school and grades, health, special needs, whether or not they know about the separation and how they are coping, whether or not they live at home, whether children may have expressed a preference for a particular parenting schedule);
the family’s financial circumstances (income sources, assets and debts, degree of the client’s knowledge about the family’s financial circumstances, concerns about hidden income sources, hidden assets, substantial debt);
the dynamics of the relationship;
the sources and level of conflict between parties;
the client’s vulnerability caused by grief, the loss of the spousal relationship, the loss of parenting time, lack of information about the family’s financial situation or about financial instability in the future, feelings of displacement;
whether the client has consulted with or is being represented by a lawyer;
whether court proceedings have been started and, if so, whether there is a temporary arrangement or order in place which governs specific issues;
whether outside agencies are involved with the family;
issues which the client wishes to address in mediation (parenting arrangements, child support, spousal support, financial disclosure, valuation, property issues);
the client’s expectations about how specific issues will be resolved;
the financial disclosure that will be required to meet legal obligations;
the client’s concern about feeling pushed to negotiate prematurely or without sufficient information to make short-term or long-term decisions;
whether or not the client is a suitable candidate for mediation (separation too recent, illness, emotional stability, confusion, inability to focus, issues of abuse, power imbalances and vulnerability);
who should be at the mediation table.
Intake meetings are confidential. They provide each client with the opportunity to provide me with background information from their individual perspectives, without fear of criticism, judgment or conflict.
During the intake meeting, I will explain the different types of agreements which may be appropriate, the various ways in which the mediation process may unfold, who may be involved in the process and what will be required in order for the parties to successfully negotiate an appropriate resolution of the issues they wish to address.
Clients are free to ask questions about me, the mediation process itself, how I might handle specific situations which may occur during the mediation process and raise specific concerns about the other person, their ability to participate in a meaningful way or potential outcomes. They are also free to share their views about how they would like specific issues to be resolved. Most people feel much calmer and more confident in their ability to participate in mediation in a meaningful way after their intake meetings.
Clients who feel vulnerable may wish to bring a support person to the intake meeting. They may be feeling pressure to attend mediation and worry that it is premature to start the process. Others may feel overwhelmed because the separation is so recent. Some clients have not had access to information about family finances and worry that they may be prejudiced in the process because of their lack of knowledge. In the presence of a trusted support person, clients may be calmer, more organized and have a better ability to provide me with the information that I need.
Intake meetings provide me with a unique opportunity to gather information, both directly and indirectly. Having the opportunity to observe behaviour is often as valuable to me as the information that is communicated to me verbally.
After I have completed the intake process and identified the issues that will need to be discussed during the mediation process, I will provide you with a list of the information and documentation that I need. We will decide how and when the information and documentation will be delivered to me so that I have time to review it before we meet.
Scheduling Your Mediation Sessions
Immediately after you have completed your intake process, we will send you a list of available mediation dates so that you may schedule the number of mediation sessions we estimate you will need to complete your discussions.
Who Attends the Mediation?
Some clients attend mediation sessions on their own. They are confident that they have the capacity to share information, receive information, understand it and make informed choices about how the various issues which will ultimately be addressed in their separation agreement should be resolved. They may consult with a lawyer before the mediation process begins, during the mediation process itself, between mediation sessions or only after the process ends but before signing an agreement.
Lawyers often attend mediation with their clients. This is very common where the conflict between parties is high, the legal or factual issues are complicated, or one or both clients feel vulnerable attending on their own.
There are also situations in which new partners, family members or other support people attend the mediation.
Arrangements are always made in advance for anyone other than the parties to attend mediation so that both parties may agree about who will be present at the mediation sessions. Both parties need to agree about third parties being present in the office when the mediation takes place. Sometimes only one party brings a lawyer or a support person to the mediation session and the other party is comfortable attending on their own. Sometimes both parties bring lawyers or support people.
In some situations which are factually or legally complicated, we ask experts to attend one or more mediation sessions to share information or to explain their expert reports.
Some parties attend their initial mediation session on their own and it becomes apparent that in order for them to negotiate an agreement, they require the support and assistance of their lawyers at the table. Conversely, sometimes parties need lawyers at their initial mediation session and it quickly becomes apparent that with facilitated discussions, they are perfectly capable of negotiating on their own and so they complete the mediation process without lawyers at the table.
At the beginning of each mediation session, we will decide together what issues will be addressed during the time that we have scheduled so that important issues are not left to the end of the session. Most often, there is an order in which issues should be discussed because some legal issues are naturally linked.
Some parties are comfortable being in the same room throughout the mediation process. Even when they disagree about how a particular issue should be resolved, they are able to have productive discussions about their differences and ultimately reach an agreement.
Some parties prefer to remain in separate rooms during their mediation sessions because they feel more emotional or vulnerable in the presence of the other party and have better concentration when the other party is not present. Mediation which takes place with parties in separate rooms is called “shuttle mediation”. It is a very common form of mediation.
Some parties are together in the same room for most of the mediation process, however, each party may speak with me privately to discuss specific issues which may be more difficult to discuss when they are together. These break-outs are known as “caucus” sessions. They are also very common.
Some parties feel particularly vulnerable at the beginning of the mediation session and so they start the session in different rooms. As the negotiation progresses, they realize that they have the ability to discuss and agree about a significant number of issues and they ultimately complete their negotiation in the same room.
The decision about whether or not you are in the same room is made on the day of the mediation session itself. It is on that day that you know what process will work best for you.
Preparing Your Agreement
Once you have agreed about how all of the issues that you need to address will be resolved, I will prepare your agreement.
Independent Legal Advice
After you have had an opportunity to review your draft agreement, it will be sent to your lawyers along with all of the financial and other disclosure made during the mediation process so that you may receive independent legal advice about the terms of the agreement.