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FAMILY MEDIATION FREQUENTLY ASKED QUESTIONS:

- What is family mediation?
- What is open and closed mediation?
- How do I know if mediation is for me?
- What does the family mediator actually do?
- Do lawyers go to mediation?
- What is the cost of mediation?
- When does mediation start?
- What happens if parties reach an agreement? Is it enforceable?
- How do people prepare for mediation?

What is open and closed mediation?
In family mediation, negotiations can be "closed" such that anything said is on a confidential basis and cannot be used in a court hearing. Or people may choose "open" mediation. In this case, if things do not settle, the mediator can do a report that may also be submitted to the court on relevant matters about the mediation. In open mediation, the mediator may be subpoenaed by either party to report to the court about the mediation. Some mediators also provide recommendations. Parties are required to choose one or the other ("open" or "closed" mediation) before the process begins.

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How do I know if mediation is for me?
Separation or separated parties typically feel anger, hurt, disappointment and other emotions as a result of the separation. This is natural. However, if they are willing and able to sit down together and cooperate in discussions aimed at resolving the issues pertaining to the breakdown of the relationship, mediation presents a good forum. Mediation is not therapy or counselling. However, the process does provide people with the opportunity to express their needs, interests and concerns about the matters they wish to settle. If there has been violence and abuse between the parties, mediation may not be the best option. It is important for people to discuss any concerns in this regard with their lawyers or the mediator.

Many mediators are trained to handle high conflict couples. They pre-screen couples to see if safety measures may be needed. This may include keeping people separate and shuttling back and forth between them in different rooms, communicating each person’s perspective to the other. It is not always a good idea to proceed, but if there is high conflict it is necessary to ask the mediators you interview about what they do in these types of cases and their experience with high conflict couples. Similarly, in some cases, when there is an imbalance of bargaining abilities between the partners, mediation may not always be workable. However, unequal negotiating ability does not necessarily preclude mediation. These are not uncommon dynamics between couples and in many cases, these imbalances can be rectified by a well-trained mediator. Again, it is important to tell the mediator so that they can be alerted to any concerns. If a persons decides to mediate, but becomes concerned during mediation about the usefulness of the process because of these or other dynamics, mediation can be suspended to see if the situation can be helped. If not, mediation can be ended altogether.

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What does the family mediator actually do?
Family mediators are impartial and specially trained persons. Their main function is to facilitate settlement discussions between people who disagree on the outcome of issues that relate to the breakdown of their relationship. Among other things, mediators help each person identify what their interests and needs are, what concerns they have about the issues and their outcome, what settlement options may be workable and how the parties can work together to reach a mutually satisfactory agreement. The goal is for the parties to design a resolution of the issues in dispute that suits them and their family.

Even if the mediator is a lawyer, he or she does not act like a Judge by making decisions. Nor can the lawyer-mediator give legal advice of specific application, but may provide information of a general nature. The lawyer-mediator cannot represent either of you. Some mediators provide med-arb in which they first help you mediate the issues to the parties’ mutual satisfaction. If that does not resolve the issues, the mediator then makes the decision. The decision is final and binding if the parties agree that will be the case, before med-arb commences.

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Do lawyers go to mediation?
Lawyers who represent the parties do not usually attend family mediation, except in some circumstances. For instance, one of the safety measures a party may want in cases of abuse is to have the lawyer present. However, lawyers play an important role, even when they do not attend. Before beginning mediation, it is wise for people to obtain advice about their legal rights and entitlements. Also, parties need to obtain from their lawyers a realistic opinion on the various issues in the case and his or her perspective on the other person’s facts and issues. Finding out the range of what a Judge may order if the matter proceeded to court helps people to consider a broader variety of suitable options.

Parties are free to consult their lawyers at any time during the course of mediation whenever they need or want some advice or information. People will need their counsel’s advice on the terms agreed to in mediation and which will be contained in a Separation Agreement or Minutes of Settlement. It is helpful to inquire about other dispute resolution options too (e.g. lawyer negotiations, court), including how the parties are involved in them, the steps, the parties’ role, the third party’s role, the cost, the length of time it takes and so on. This helps parties make a decision about what method is most appropriate for them.

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What is the cost of mediation?
It varies. Fees are usually paid on an hourly basis and a session can last from one to three hours or longer. Retainers are not always required. Mediators have different fee bases, depending on factors such as education, experience, professional background and so on. The cost of mediation will therefore depend on the mediator’s hourly fee and on how long it takes to resolve the case, narrow the issues or decide on the next step, whatever outcome the parties reach. Some issues are more emotional than others; some are more complicated than others; some carry more symbolic meaning than others and so on. The cost of mediation is typically shared equally by the parties.

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When does mediation start?
As soon as both people agree to proceed with mediation, they may do so, subject of course to the mediator’s availability. Some mediators interview each person separately before the first joint session. Joint sessions may then occur weekly or bi-weekly, etc. It is up to the parties to set a workable schedule. Mediation may begin at any time during the legal or negotiation process. So, even if a person has commenced a lawsuit, or if negotiations between counsel have begun, people can still decide to mediate. Sometimes, it takes time for separated couples to get to a point where they are comfortable and ready to resolve their dispute together.

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What happens if parties reach an agreement? Is it enforceable?
A mediator usually drafts a summary of what was agreed to (and what was not agreed to, if that is the case). Then, one of the party’s lawyers formalizes final terms in a Separation Agreement or Minutes of Settlement. Some mediators draft the Agreement, which is still subject to parties obtaining independent legal advice. The agreement will be binding and enforceable once the terms are contained in a contract and it is properly executed.

Even if people do not reach a final agreement in mediation, parties may be able to reach a partial or interim agreement, define the balance of the issues, plan the next procedural step in litigation, decide on what parents may do to protect children from any dissension between the parties, etc. A resolution of any issues or concerns can go a long way to help partners settle remaining or outstanding matters, through lawyer negotiations, or litigation.

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How do people prepare for mediation?
It is wise to obtain a lawyer’s advice on the issues and a clear understanding of the legal rights and entitlements before beginning. Parties are usually required to provide a financial statement if support and/or property issues will be mediated. It is helpful to compile any documents that substantiate income and the values of individual and joint assets and debts on the date of marriage and separation. If people have received an inheritance or gifts from third parties since the date of marriage, it expedites matters to document the information about these items, too. Common law and same sex couples are required to provide information on income and jointly and individually held property and debts.

It is helpful to carefully consider what people really want and need as an outcome. If people review their options, write them down and prioritize what is most important, they are better prepared. It is also important for people to think in terms of what is a mutually satisfactory resolution for both people and for their children, if terms about parenting are an issue. Some questions to consider are, "What is a fair and reasonable outcome that I can live with?", "What ongoing relationship do I need or want with my partner?", "What do I want for my children in terms of their relationship with each of us individually and as their parents?". What do I think the other person needs to feel he or she is also getting a reasonable and fair resolution? To gain the most satisfactory resolutions, it helps people to open their minds to a range of possible solutions of the issues. It is also important to commit to giving the process a chance, by approaching mediation as a collaborative exercise, requiring cooperation. These are just some of the considerations people are urged to consider before starting mediation and beginning the challenge of joint problem-solving.

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What is family mediation?
Family mediation is a voluntary process whereby an impartial person, called a mediator, helps people negotiate a resolution of the issues relating to the breakdown of their relationship. Mediation provides couples with an opportunity to work together to make mutually acceptable decisions on the issues affecting their lives and to tailor-make a settlement that suits them and their family. The issues may be parenting (custody and access), child support, spousal support, division of property and so on.
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