In general, mediation is a process to settle disputes outside of court. For couples who are separating or divorcing because their relationship has irretrievably broken down, mediation is a preparatory step that they can take to make decisions about their children or their property before even going to court. In some cases, when the mediation is successful, separating or divorcing couples avoid having to litigate altogether.
Mediation is compulsory when parties are applying for consent orders or parenting orders from family court. When couples are in the process of separation or divorce and they have minor children, mediation is mandatory. This means that the couple must appear before an authorized mediator and participate in mediation. At the end of the mediation, the authorized mediator will certify that the couple has undergone mediation and that they had reached an agreement. When couples in conflict have not reached an agreement in mediation, the mediator can assist in clarifying for the court what the issues in dispute are. The mediator usually submits a certification or a mediation report to the court.
For couples who have no children or have children who are all of age, mediation is not compulsory. Thus, some people think mediation is a waste of time. Indeed, some people approach mediation like a chore that can be put off or avoided. However, the purpose of mediation is to allow parties in conflict to decide on important issues regarding their properties, debts, and their children after their relationship breaks down.
During mediation, couples in conflict can clarify their future intention to start litigation. They are tasked to make full disclosure of the assets, income and liabilities, of the properties in the parties’ possession or control. These documents may be used as evidence in litigation. By doing this, the parties can seek only realistic and reasonable orders from the court if they do go on to litigation.
Most people fear that spending an hour or two inside a conference room with a mediator and their ex-spouse or ex-partner is not a good idea. They are afraid of hostile and heated discussions or of being harassed by their ex-partner or ex-spouse. However, mediation allows the parties to come to a neutral space to address specific issues. The mediator is an independent third party and the mediation focuses only on specific issues such as property settlement or the living arrangement for the children. Whatever is discussed in mediation is kept confidential.
Some people think that they can show up at mediation without participating. But it is necessary to remember that agreements reached through mediation are usually binding just like a contract. On average, successful mediations take about six hours.
Some people don’t think mediation works. Studies have shown that mediation is less costly than litigation. More importantly, separating or divorcing couples who undergo mediation find that they experience less emotional trauma in mediation than in litigation. Mediation is effective: 6 out of 7 cases of couples in conflict reach a compromise or agreement through mediation. And when separated or divorced couples have agreed on the terms of their settlement, studies show that they are less likely to violate them.
Mediation will work if you come with a positive attitude and an open mind. Mediation is all about compromise or give-and-take. So, it will be to your advantage if you manage your expectations as to the outcome of the mediation, and if you come prepared to listen and compromise.
It will also help if when you come to mediation, you have already reflected and articulated the issues of concern to you. You can prepare to participate in mediation by knowing what you want and need before hand, by collecting documents and financial information; preparing a list or inventory of the properties of the marriage with their appraised value.
Having a lawyer during mediation is not mandatory – you can go through mediation by yourself without the assistance or presence of a lawyer. However, some people find peace of mind in having a lawyer next to them. Mediation lawyers can help by explaining the mediation process. They can also help you prepare for the mediation itself. They can discuss with you what you need and what you are entitled to under the law. They can help you frame the issues or pinpoint the areas of disagreement or dispute between you and your partner or spouse.
Some people think that lawyers are only necessary when they are already in the trial stage. However, mediation lawyers receive specialised training in alternative dispute resolution. For a mediation lawyer to be most helpful to you, the mediation lawyer you choose must be physically and mentally available to you because you must have a lot of questions to ask them. A good mediation lawyer must be accessible – you can reach them when you need them. The mediation lawyer must inspire your trust because they are perceptive and they do their homework. They are familiar with the facts of your case and they know what you want and need.
You will want a mediation lawyer who has a wealth of experience as they have represented other clients in mediation before. You want a mediation lawyer who has a cool head and sharp mind and who negotiates in good faith. And then, after the mediation, the mediation lawyer must be patient enough to go over the settlement agreement with you. They must be prepared to answer all your questions and not pressure you to accept or to reject a settlement.
The mediation lawyers of Family Law Assist have the wealth of experience that can help you through mediation. Call MKI Legal today for a free initial discussion of your personal circumstances – it’s confidential.