Using Family Mediation for Divorce

Divorce is rarely easy, which means having the right help in your corner from start to finish is smart. Fairway Divorce Solutions is a leader in Canada thanks to the movement toward Alternative Dispute Resolution. Fairway resolves divorce-related disputes through the process of mediation. Learning more about family mediation will shed light on the difficulties of divorce and how mediation is a better solution in almost all cases.

When couples hire lawyers to resolve issues, it typically becomes a long, drawn-out, and costly process. In many cases, things are reasonably amicable until the lawyers put unreasonable positions forward. This tactic can lead to divorce litigation and going to trial. Ultimately, that results in major costs and unnecessary stress on all the family members. Litigation's financial and emotional stress negatively impacts careers and relationships for years to come.

Divorce Mediation

Divorce mediation means working with experienced and accredited professionals to find a mutually agreed upon outcome. These mediators will facilitate the process so that the parties can discuss and analyze the issues at hand. In some cases, the parties can be together; in others, they can be separated to avoid undue influence or pressure. The resolvable issues include division of assets, spousal support, child support and how the couple will co-parent.

The mediator's job is to remain neutral and help both sides come to a fair resolution. The goal is to help both sides better understand their own needs and have a perspective on the other party's position. In this way, they can find common ground required to find a resolution. In cases where there is no common ground, which can happen, then the skill of the mediator is paramount to an outcome that legally protects both parties rights.

Depending on the mediation process, the parties can bring in their respective lawyers to help them during the mediation. There is usually a lot of flexibility to ensure that each party reaches the best outcome based on their situation and legal rights. Ultimately, the goal is to work through the family mediation process to avoid costly fighting and litigation (going to court).

The benefit of mediation over litigation (hiring lawyers to fight on your behalf) allows the parties to maintain control over how the agreement is made. It is designed to provide a safe space as well as a level playing field for the negotiations.

What is the difference between Mediation and Litigation?

Mediation has the ability to hold individuals accountable. That is largely due to the face-to-face nature of most mediation meetings. The difference between mediation and litigation in this instance is that individuals are not able to hide behind their lawyers.

family divorce mediator

Divorce Mediation Provides Control

One of the major benefits of family mediation is providing each party with the power and control during the entire process, including how to deal with conflict. Instead of letting divorce lawyers control the situation and potentially make things worse, both parties have control over the mediation process.

The benefit of mediation is that you maintain control which, in turn, will reduce the drama. When things do escalate, it means just regrouping and perhaps drawing the process out a bit further to ensure that the best decisions are made. Either way, mediation reduces the dollars spent on legal fees and is usually years shorter in duration.

Couples can work together to keep the situation as amicable as possible. With family mediation, there are checks and balances that keep things in line. The process is about encouraging cooperation, particularly in situations that involve children. People feel they have a sense of control and can establish the future they want.

The Truth About Family Mediation

Let's get this straight: family mediation is about choosing how much professional intervention you want. Lawyers may be present, but the goal is not to get into an entrenched court battle.

Depending on your province, the law may require mediation before moving to divorce litigation. A direct message from the judicial system is that the old way of divorcing is outdated and does not bring the best results for families. They are enforcing by law the use of mediation because they believe it is in the best interest of divorcing Canadians. You no longer need to be paying an attorney to be part of the negotiations as a whole. Getting legal advice is smart, but having the lawyers negotiate on your behalf is problematic and usually results in less for each party and more in legal fees.

Legal fees and emotional costs can get out of hand when the divorce moves to litigation. Family mediation provides a better resolution than litigation, allowing both parties to move forward with their lives. Divorce mediation works best when using a family mediation firm that specializes in divorce and separation.

Suggesting Family Mediation

What it Means

You, your spouse, or the courts can suggest family mediation. There are numerous benefits to the mediation route if you are going through a divorce and considering what route to take.

  1. Mediation is faster.
    Traditional litigation is time-consuming. It is about declaring a "winner" and a "loser," with both sides working on getting what they want. Whether hammering out co-parenting schedules, dividing property, or something else entirely, mediation aims to resolve these issues promptly.
  2. Mediation is less expensive.
    Not only is it faster to go with mediation, but it is also a lot less expensive. Bringing in lawyers can get expensive quickly, both financially and emotionally. For instance, lawyers carry a hefty hourly fee, whereas mediation comes with a flat fee. Mediation is about finding a resolution so both sides can move forward without having to be heavily damaged financially or emotionally.
  3. Mediation is recommended.
    Before you start litigation, the courts themselves will require mediation first. That is because it has a proven track record of success and can result in far preferable results than traditional litigation.
  4. Mediation protects important relationships.
    Divorce is difficult, but it does not need to destroy relationships. A smooth divorce process can set everyone up for success.

Tackling Family Mediation Myths

It is no surprise that family mediation is becoming the preferred divorce method across Canada. The mediation process usually ends with drafting the Separation Agreement and filing for divorce. Both parties can achieve a good outcome while simultaneously cutting legal fees, avoiding ugly court battles, and moving forward as financially and emotionally intact as possible.

There are still more than a few misunderstandings regarding family mediation, and there is also confusion about the process of engaging a mediator versus retaining a family litigation lawyer. Here are some of the most common questions and issues preventing couples from choosing mediation over hiring lawyers out of the gate.

Does the Mediator Make All the Decisions?

One of the biggest misconceptions – up there with having to be amicable for mediation to work – is that the mediator is the one who makes all of the decisions or pushes decisions in a specific direction in family mediation. The entire concept of mediation is that the parties mediate an outcome without the pressure of the lawyers or each other. The goal is to get as close to a win-win as possible, which contradicts a lawyer's goal of a lose-win.

The mediator is there to ensure that each side better understands the needs of one another and themselves. They help to facilitate the conversation and come to the best solution possible. It is ultimately up to the couple to agree to the outcomes that will work best for moving forward.

Does Family Mediation Only Work When Most Things Have Been Agreed to?

There is also a myth that most decisions and issues must be solved before the mediation begins, and this is simply not the case and, in fact, would make mediation pointless. The entire point of family mediation is to solve problems and agreements that haven't been agreed upon.

Working with Fairway Divorce Solutions means helping in the negotiations, generating solutions, and finding positive outcomes. Mediation is about working through the conflicts and bringing both parties to a resolution that may not have been possible through traditional litigation.

Is Family Mediation Only for "Simple" Financial Divorces?

Perhaps the biggest myth surrounding family mediation is that it is only for "simple" divorces. Divorces with many assets or even complicated business matters should be handled by litigators, right? Wrong.

Specialists within the mediation field are trained to work with complicated financial assets. For most people, the financial aspects of divorce are at the top of the list of concerns and often result in the most conflict.

Just because the situation may entail more than a few financial assets, it does not mean that family mediation isn't right for you. Talk to our team of experts to find out what they can do for your financial situation.

Does Family Mediation Mean That There is an Imbalance of Power?

It is safe to say that most married couples do not have the same personality, and one person may be more dominant, outspoken, analytical, temperamental, controlling etc. In the event of separation or divorce, there is often a concern that one party may "outpower" the other, resulting in an unfair outcome.

There is an assumption that without an aggressive litigation lawyer, those who don't necessarily have "strong" voices won't be heard during the negotiations.

But the truth of the situation is that mediators ensure that both positions are heard and considered in designing the outcome. One spouse will not be allowed to dominate the conversation and mitigate the other.

The reason why family mediation works in this instance is that both parties must meet with the mediator. From there, both must be accountable for the process.

Is a Separation Agreement Legally Enforceable?

The process of mediation is favoured and preferred throughout the court system. At the end of the mediation process, when all decisions have been made, a legal Separation Agreement is drafted and signed in front of a lawyer. This lawyer will provide Independent Legal Advice so that the person signing understands the terms completely and is comfortable that their rights have been protected. Once signed by both parties in front of two different lawyers, the contract is binding and enforceable.

Are Mediation and Therapy the Same?

Not in the least. A mediator is not a therapist, and the goal is not to talk through problems. The goal is to find solutions and generate discussions between two differing parties. Sometimes, these parties will meet the mediator separately to encourage independent decision-making. It can be helpful to talk about the reasons or emotions behind these decisions.

At the end of the day, the effort is to tackle the problems and find solutions. All of which leads to a signed Separation Agreement that is enforceable in the courts.

Does Family Mediation Take a Lot of Time?

Think about it this way. Going through traditional litigation means it can take years depending on the level of contention and how much money each party has available to fight. There is also the availability of the courts as delays can take months or even years before going to trial.

But mediation is about finding a solution sooner. Even in a more contentious situation, the process can take months. Mediation is, without a doubt, a much shorter process than traditional litigation.

Will Lawyers Be Needed During Mediation?

It is important to note that lawyers can still be involved in the process even when mediation is favoured. An attorney would be there to provide independent legal advice.

The intention of independent legal advice isn't to involve lawyers in the negotiation process. It is to ensure that each party understands the terms of the separation agreement and is signing it freely and without pressure from the other party.

Having independent legal advice can also make sure that you understand your responsibilities, obligations, and rights. Mediation also gives each side a choice as to how involved lawyers will be during the process.

Does Mediation Work Without Good Communication Between Exes?

The reason that people go through mediation is that there are disputes that need resolving. So, having good communication with your ex is not a prerequisite for mediation. In fact, most couples getting a divorce do not have good communication.

There are also a variety of mediation types to fit your specific needs. Understanding the different forms of mediation can be valuable before starting. The entire process is meant to assist in bringing both sides together so that they can come to an agreement.

Different types of mediation

  • Interest-Based Mediation
  • Collaborative Divorce lawyer Mediation
  • Mediation Arbitration (Med/Arb)
  • Directive Mediation
  • Facilitative Mediation
  • Process Oriented Mediation
  • Caucus Mediation

Are Men (or Women) at a Disadvantage During Family Mediation?

There are no favoritisms during the mediation process. If anything, mediation is meant to be neutral. The mediator is meant to be a neutral third party who does not favour either side during the negotiations. This is why the chosen mediator and the chosen process must be well researched.

In addition to getting legal advice, the laws in Canada are straightforward. If there is a feeling of being disadvantaged, it is usually because the laws were not favourable to that party's position. Unfortunately, this is just the way it is in Canada, and at times, men or women can feel that things are unfair.


The Realities of Divorce

Like it or not, there are a few unofficial rules when it comes to divorce. These aren't necessarily the same for everyone, but they are a pretty good rule of thumb for divorce anywhere. Here is what you should prepare yourself for when starting the process of divorce.

  1. Things are going to be strenuous.
    The unfortunate fact of the matter is that things are going to get a little tense no matter how amicable you think things are ending. Coming to the end of a relationship is stressful and doesn't necessarily bring out the best in us. Be prepared for a frosty response from time to time, even if you think that things are ending amicably.
  2. Money is often the main factor.
    A lot of disputes within divorce revolve around money, and arguments about who gets what and how much. Mediation can keep two sides from digging their heels in and engaging in a costly legal battle.
  3. Planning is vital.
    The costliest thing that a divorcing party can do is not to plan ahead. In divorce, it can be easy to let emotions dictate actions, but that is the path to expensive litigation that can take years to recover from. Try to think things out and plan wherever possible, especially with the help of a professional.
  4. Understand your rights.
    Undoubtedly, the biggest mistake anyone makes in divorce is not understanding their obligations, rights, and all the complexities that come with the process. This is why talking to a mediator and getting your independent legal advice from a lawyer is encouraged. Between the two, they have the knowledge and experience to ensure that you understand each part of the process and what it means for you.

Should My Spouse be Willing to Participate in Family Mediation?

The short answer is that, yes, they should be willing. After all, the whole point of mediation is to bring both parties together so that a resolution can happen.

If your spouse isn't willing to participate in any discussion or refuses mediation, many provinces may force them to participate before they can proceed to litigation. This is not the best scenario as their backs may be up, and they refuse to participate, ultimately resulting in court.

The best outcome is to provide them with enough information so that they can understand how it is in their best interest, both financially and otherwise, to at least give mediation a real chance.

There are a plethora of resources available that can help bring even the most tenuous of relationships together to the negotiation table. These tools are meant to help assist couples that don't exactly have the easiest time communicating.

Does Family Mediation Work in Volatile Relationships?

Most divorcing couples need help when it comes to negotiating a separation agreement. Some more than others, however, mediation can work with both amicable and volatile couples as long as physical abuse or personality disorders are not dominating the relationship.

Some parties will engage in collaborative divorce mediation when they are truly concerned about extreme aggression. As stated above, there are pros and cons to this type of mediation, and that is why it has lost its appeal for most.

The best way for mediation to work with more volatile couples is to ensure you are working with a mediator who has the experience to handle these types of cases. They should be using a combination of mediation types to ensure the safety of each party and well as that neither party is bullied.

Is There a Difference Between a Family Mediator and a Marriage Counsellor?

Marriage counsellors and mediators have distinctly different goals, though they do share one similarity: to use a variety of conflict resolution tools in order to help their clients. The main difference is that the counsellor is working to save the relationship or lay the foundation for a peaceful parting of ways, while the mediator is attempting to find a resolution to the disagreements between the two parties.

The difference is that the family mediator has the sole focus of reaching an agreement on the issues in a divorce between the spouses.

A marriage counsellor has the idea of saving the marriage. A family mediator is not there to help preserve the relationship, though they can help to facilitate a healthy relationship in the wake of a divorce.

Tips for Avoiding a Messy Divorce

Messy divorces tend to be a lot more costly, both emotionally and financially. Here are a few tips for those looking to avoid the battle of a messy divorce.

If you are hoping to go through the process of divorce without all the hassle and mess, there are a few ways to do so.

  1. Consider mediation.
    If you want to take the surest route to avoid a messy divorce, then you should be considering mediation before litigation. The latter is particularly costly every step of the way, requiring thousands upon thousands of dollars to see things through to the end. Most importantly, you are crafting your outcome and not a judge who barely knows you or what is in the best interest of your family.
  2. Stay out of family courts.
    This is an extension of avoiding litigation. If you can avoid the court systems as much as possible, it will be more cost-effective and less emotionally draining. Working with a mediator can get you to a better end game.
  3. Be organized.
    No matter what kind of divorce you are going through, there is going to be a lot revolving around gathering financials and determining what and the values associated with each is. Before you even begin, make sure that you have all your financial documents gathered and organized to the best of your ability. It will save a lot of time and hassle throughout the process. Also, have a short-term plan around the co-parenting schedule. A trained mediator will help put that in place.
  4. Do your homework.
    While there is little chance that you will understand all the ins and outs of mediation and divorce, it helps to be prepared. Do your homework and know the process of how mediation and divorce work in your province. It will create a lot fewer surprises, allowing you to make it through the process as smoothly as possible.

Does Family Mediation Work in Relationships with Domestic Violence?

Traditional divorce can feel infinitely more complicated when there is domestic violence involved. If one party is truly at risk, then mediation is not an option and using the courts to ensure the safety of either the children or a parent is the best route.

Research does show that mediation works quite well when it comes to volatile divorces, where tempers are high, but the risk of physical abuse is low. There is even some proof that it may be better than litigation when handling cases with high conflict.

Why Family Mediation?

If you aren't quite sure whether you should go with traditional litigation versus mediation, there are a few simple answers. Family mediation is exponentially cheaper with better outcomes than taking matters to court. Not only is it financially more cost-effective, but emotionally so as well.

There is also the matter of family mediation being better for the kids. Kids need both parents for the development of self-confidence. Only in rare instances is having both parents active in parenting not advised. Given how mediation works, it is conducive to designing a co-parenting plan that works for all family members, especially the children.

Finally, family mediation is faster. Traditional litigation can take years to complete the process. By going through family mediation, both parties can begin moving on with their lives instead of becoming mired in a seemingly endless battle. Both sides deserve to move on with their lives, not continue the never-ending war.

Should Your Mediator Have a Legal Background?

One of the main points of discussion about mediation is whether the family mediator should be a lawyer or not. It comes down to a few schools of thought.

The first is that lawyer mediators have a better understanding of the law. Understanding the law is important; however, family law in Canada leaves little up to interpretation as the letter of the law is quite straightforward. Certainly, in complex situations around spousal support, pre-marriage assets, businesses, and inheritances, getting legal advice is prudent. However, an experienced mediator, regardless of background, should know when to bring in outside professionals. This includes lawyers, accountants, and business valuators who can assist in financial division and discussions.

The effectiveness of a mediator is much more about their mediation training and experience than their area of expertise; legal, financial or parenting. Sometimes, a family lawyer coming from a background in litigation can result in an almost guaranteed arbitration as that is how lawyers are trained. Mediation is a complex skill set, and a great mediator seldom ends up in arbitration.

Lawyers make their money when conflict drags on – this is a simple fact. While non-lawyer mediators can also drag things on – it is usually due to a lack of analytical process or skill vs fee motivation.

What it ultimately comes down to is that personality types and personal skills that make a good family mediator usually result in the opposite in a litigation lawyer.

The simple fact is that there is no definition for whether a mediator should have a legal background. The role of a family mediator is quite specialized and requires a specialized set of skills.

Start by finding a family mediator who practices family mediation regularly. Just as importantly, ensure they are committed to out-of-court dispute resolution.

If anything, ask a few important questions. "Why do you practice family mediation? How many cases do you mediate in a year? Do you still litigate?" How many of your mediations end up in arbitration? These will give you the clearest insight into whether you have chosen the proper mediator. Appropriate child development or financial backgrounds may be more suitable given the circumstances of your situation. Asking lots of questions and finding the right match before you proceed is the key to success.

Want to Bring Your Spouse to Mediation?

You can encourage your spouse to make their way to the mediation table in two ways. The first is to offer to pay their mediation retainer, and the second is to send them a mediation letter. Let's take a closer look at both.

Paying for Your Spouse's Mediation Retainer

At first blush, it seems like this is crazy. But with both parties already in agreement about splitting up, family mediation can quickly become the preferred option. But what if one party can't afford to participate?

Convincing a spouse to participate in a process that they don't want to partake in can be difficult. And with the familiar process of litigation, it can all become far more costly in no time.

It might seem counter-intuitive but getting both parties into the room to talk is important. So, paying for your spouse's share of the retainer can make a lot of sense. Here are three reasons in particular.

Repaying the Loan

The goal is to get both parties to the mediation table because it can save major bucks over the litigation process. So, while it may seem crazy, paying for your spouse's mediation fees can quickly become an investment in saving money.

You can agree to cover their part of the retainer to get them to the table, with the promise of repayment after things have been settled. When it comes to dividing shared debts and assets, the process is known as the equalization of net family property. The mediation costs incurred on behalf of your spouse can be added to the credit in your name.

When all has been settled, the equalization payment can be adjusted to reflect that credit. It is basically akin to a short-term loan, one that is meant to drive the mediation process forward.

Providing Cost-Certainty

Here is an important fact to consider: the average contested divorce in Canada costs just over $27,000. Should the case go to trial, those costs can close in on $100,000, if not more. If that doesn't hammer home the point, consider this: the first retainer fee (there will be more) will likely cost more than the entire mediation process.

The retainer generally only covers the initial legal costs. From there, it becomes increasingly more expensive. Considering the average length of a contested divorce in Canada runs between two and three years, that means a lot of time spent racking up costs even if the issue doesn't go to a full trial.

Paying your spouse's share of the mediation can become an investment in a much shorter timeline. It is also an upfront cost that will save you major bucks that litigation would happily bleed dry.

Taking Mediation Seriously

If you are dealing with a spouse skeptical of the mediation process, there is another point to consider. Offering to pay their way shows just how seriously you take the process.

Showing them that you believe in the mediation method enough to cover their way can be proof that they need to understand what mediation means. It shows them that you are serious about sitting down and coming to a resolution rather than battling things out to the bitter end.

Whether you ultimately get the money back or not, showing that this is a worthwhile investment can be enough to convince your spouse that mediation is the right way to go.

Send Them a Mediation Letter

There are a plethora of templates out there to choose from. The point of the mediation letter is to make it clear that the decision is to separate and that the goal moving forward is to keep things as agreeable as possible.

Use the mediation letter to lay out the reasons why mediation is a better option than litigation. This can include costs, impact on the children, the stress and timeline that litigation entails, and much more.

If you don't feel comfortable crafting the letter yourself, refer to any number of templates out there. The goal of a letter is to encourage working together to facilitate the best possible outcome for both parties through mediation.

The 3 Most Common Mistakes Divorcing Couples Make

Coming to the decision to end a relationship is a big one. Depending on how high emotions are running in the wake of that decision, it can lead to one or both parties acting less than rationally. This leads to some of the most common mistakes divorcing people tend to make.

  • Hiring a lawyer immediately.
    Historically, agreeing to divorce has meant lawyering up, and litigation would be the next logical step. So, naturally, this leads to separating couples enlisting a lawyer before they even understand the options. Take a moment to investigate your options, consider the pros and cons of a mediator, and then make an informed decision.
  • Letting emotions rule.
    Perhaps the biggest mistake that divorcing parties make is letting emotions rule the day. Being angry with your spouse for how things ended is all too common. But those emotions often mean making decisions at the expense of their financial future. Becoming entrenched in an expensive legal battle isn't "winning," even if the case goes in your favour.
  • Not having a go-forward plan.
    This one ties in with the previous point. Because emotions can dictate the entire path forward, most divorcing parties rarely have a go-forward plan. Knowing what you hope to achieve through the separation and what comes next are vital. Have a plan, keep your finances and legal rights in view, and most importantly, don't act rashly.