Frequently Asked Questions About Divorce Mediation
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According to Canadian Lawyer Magazine Legal Fee Survey, the Average Western Divorce cost by a Lawyer was about $10,900 per person rising up to $15,000-25,000 when it required a trial.
Save time, money and heartache with Mediation.Litigation is expensive, time consuming, emotionally draining and unpredictable until a judge or jury decides the case, you can never be certain of the outcome. Because litigation is so inefficient for most of us, alternative dispute resolution, specifically mediation, has become increasingly popular. An agreement that both parties determine that will encompass security, closure and most importantly, it has the highest rate of follow through on any option.
Expect to be heard, empowered, and to have control over what is agreed to in mediation. This is very different from litigation, where parties give up control to a judge. One should expect a mediation process that helps them repurpose their marriage relationship for a healthy fresh start, and mediation is the best avenue to accomplish this. This process has a third party, the mediator, who helps guide couples through their process of coming to a divorce agreement that works for all involved.
After an initial consultation and the couple has decided to move forward with their Divorce, an Agreement to Mediate is signed to engage the services of the mediator. Generally, this Agreement details the issues to be mediated, the role of the mediator, and how the mediation will proceed.
From the initial agreement to move forward an in-take meeting is scheduled for each partner separately. The mediator will speak to each party separately in a safe, private, and confidential setting. Everything said in each of these meetings is strictly between the mediator and the individual, it is a time to get all one’s thoughts, feelings, wants, and needs out to the mediator.
Once these in-take meetings are completed the full mediation can be scheduled to begin. The issues covered within divorce mediation can include parenting plans, division of property, child support, spousal support, communication, and anything else pertaining to the divorcing relationship. The goal should always be to get to the best agreement for all parties involved and set each individual up on a strategic path for their advantageous future.
Using mediation as one’s tool for divorce offers many positives, one of them being speed. Going through mediation rather than the courts keeps the timing in you and your soon to be ex’s hands. Depending on the complexities of the case, going through mediation can take anywhere from a few hours to several months. The process varies from couple to couple as this process is customized to each case.
Some of the disadvantages to mediation are that all disputing parties need to agree to mediation and show up, as a person can’t be compelled to participate. If there is a need to establish legal precedent, or information needed for the courts, mediation will not work as the mediator confirms without prejudice guidelines, requesting not to be compelled as a witness or to testify before the courts. Mediation is a private closed session.
Additionally, those moving forward into mediation need to have the knowledge and authority to agree, if they do not have full authority or knowledge the mediation needs to reschedule with those that do.
For mediation to work full disclosure, honest, and trust are required, however, when a party isn’t forthcoming arbitration or litigation would be better options.
Generally, the four steps of interest based mediation are the initial consultation and introduction meeting. This meeting is a way for disputing parties to feel comfortable. The mediator usually introduces themselves to the parties and explains the general process and role they will take, which is a neutral role whose goal is to ensure the resulting agreement is fair and just for each disputing party. Often the agreement to mediate is provided to the clients to sign at the end of this meeting should parties decide to move forward with mediation.
The second step is the statement of the problem(s). After an introduction and establishing the guidelines of the mediation, the mediator provides each party with the opportunity to provide a broad explanation of the issue.
From there, the third step begins as information gathering and understanding begins. This step is filled with many questions from the mediator for clarity and understanding for all parties involved. The mediator will flush out the reasons, their wants and needs, for why each party has acted in a certain manner and why they seek certain results.
Step four is about framing the issues, where the information that the mediator has received through the previous steps will be discussed and bargaining begins. This is the most creative of all the steps as it can involve many different types of brainstorming of ideas and solutions. Once the solutions are agreed to and tested they are written into a formal agreement that is signed by the agreeing parties.
One can expect to be treated in a fair and balanced manner, in their first divorce mediation, this is ensured by the mediator’s training in separation and divorce as well as AIP (alternative interdependent partnership, which is Alberta’s legal term for common law relationships). A psychologically safe setting must be established for each party participating. Mediation is the best avenue for parties wanting to maintain control over their agreement and future, and those parties should expect to sign an agreement that will stand the test of time. Further empowerment mediation offers is guaranteed privacy.
Expect to discuss the family and relationship issues, including parenting plans and child support (should children and/or pets be involved), division of property, spousal support, communication, and other topics unique to the marriage or AIP relationship.
Additionally, one should expect that each party involved be honest and forthcoming in all information and matters involved; matters, such as, full financial disclosure for each partner involved. Thus, ensuring that the agreement is as fair and equitable as possible for all involved.
In reality, the basic economic wellbeing of men’s lives increases after divorce, as they continue to earn more while bearing fewer family expenses or responsibilities to that of women. A woman should ask for what she is entitled to and should ask for the same things a man would, safeguarding reality is covered in the settlement; while the economic qualities of life goes up for men after divorce, women’s overall economic quality goes down. She should ask for her healthiest fresh start.
She should be ensuring that she gets a settlement that protects and supports her direct needs, now and into her future. Many divorces may look fair, direct 50/50 split, however, there are multiple factors that disadvantage woman that aren’t being taken into account.
Generally, most women take on the majority of child rearing in divorced families. Most settlements fail to take into account the damaged future earning potential of a woman with childcare responsibilities. With women earning significantly less than men, merely based on their gender, and then adding the onus of childcare places them in lower earning potential. Furthermore, women’s lower earning power is then exacerbated by childcare responsibilities reducing a woman’s availability hindering her options to increase her income through promotions, client cultivation, not to mention being able to work in a field she enjoys, and so forth. Of course, settlements often include shared parenting responsibilities, however, reality vs what is written rarely match up. A major reason for women to ensure their settlement takes these factors into consideration.
This is where mediation can be much more beneficial for getting to a healthier settlement. The courts are still playing catch up when it comes to gender inequalities, where mediation can be much more creative in their fair and balanced approaches.
Get a private notebook and begin researching and journaling, keep it in a safe place, even if this means keeping it outside of the marital home. Start researching divorce mediation and trained mediators as well as arbitration or court options. Should you need to borrow money from family or friends to pay for your mediator or litigator ensure you have a signed promissory note proving it as a loan and not a gift. If there’s any way to begin a separate account to guard against future financial contingencies, start this as soon as possible.
Within your journal, keep track of appointments and discussions with your partner; write everything down. From visitation dates with the children to their teachers’, doctors, coaches, and tutors’ appointments should all be documented, especially if there are any issues or concerns that arise as this may become evidence of your participation in your children’s lives.
Stick to your routine, try to maintain a normal schedule that includes taking care of yourself. Routines help us maintain focus and keep individuals on track. Part of this routine should also include stress relievers, like exercise and meditation. It is also key to surround yourself with support, such as friends and family; do not isolate yourself. Many gravitate to self isolation in times of great stress, like a divorce, however, this is not helpful nor is it psychologically safe. Reach out to a psychologist or coach who can help you navigate this difficult time.
Make a plan, organise all financial documents and make a list of all the property. A secondary list of what your goals are, as well as what you want and need from this divorce is important. Get ready to negotiate for your brightest future. Ask for everything you want and need, be selfish, take care of yourself as the process will help take care of your soon to be ex-partner. Work towards repurposing your relationship, especially when children and/or pets are involved. Always keep your healthiest future as top priority, everyone deserves their own fresh start.
- Educating himself about the divorce process, including the laws and requirements in his province.
- Gathering financial information, such as bank statements, tax returns, and other documents, to help him understand his assets and liabilities.
- Identifying any assets or property that he wants to protect or that he thinks may be disputed in the divorce.
- Contact us for a no-charge consultation to understand the entire process
- Considering whether mediation or other forms of alternative dispute resolution might be a good option for him, depending on his situation.
- Communicating with his spouse about the divorce and trying to come to an agreement on key issues, if possible.
You should ask to see the whole financial picture, covering reality vs paper. Clearly getting up to speed with one’s financial picture is key and should be an integral part of the mediation process. This can be done through financial analysists, such as a CDFA (Certified Divorce Financial Analyst).
Other items, such as childcare and support, or hidden tax implications for items like alimony can also crop up when not addressed properly; again, reality vs paper side. This is why reality testing is crucial to agreements, with timed follow ups and re-visiting the agreement to make necessary adjustments when needed.
Mediation is about open, healthy dialogue for open discussion about the conflict at hand. This is why insulting the other party(s), on purpose or inadvertently does not help and should be avoided. As emotional as mediations can be it is best to maintain calm composure, be strategic and respond rather than react.
Questioning is a great tool used to elicit crucial facts and feelings surrounding the conflicting parties. From questions that lead and transform, to those that probe for deeper understanding, and the occasional closed question strategically placed for precision. Mediators genuinely explore through questioning tactics to bring about change and understanding.
“How long has this conflict been going on?”
“Having gone over the conflict, how do you feel it goes against you?”
“Can you tell me how you feel about this issue?”
Unlike adversarial lawyers, trained separation and divorce mediators are strictly impartial. Mediators do not advocate for either side, rather, they steer the separation process towards a strong settlement and understanding that will stand the test of time. Mediation is a much more amicable way to resolve a divorce.
Even though the divorce mediator plays an active role in the mediations, it is the partners involved who are in full control over what’ discussed and the decisions made. Set against litigation, where the judge takes control of the whole situation and makes all the decisions.
Mediators have specialised training and skillsets to do what they do. Lawyers also have specialised training as advocates for their individual clients, which is a completely different from mediation. Mediation maintains the control where it belongs, between the divorcing partners. It is a non threatening structure that empowers the individuals divorcing to repurpose their relationship for a healthier future for all those involved.
There is a reason why Canadian courts are making changes to their individual provincial family court systems. With the cost of litigated divorce skyrocketing, among the simple divorces starting at about $12, 000 per individual, and those cases going to trial beginning at $45, 000 per person who can afford to get divorced? Some feel they can save money by representing themselves in court, however, only about 14% of them actually win their case, fair justice seems to be an oxymoron when someone with no legal background is expected to present before a judge against a trained lawyer.
Ensure you have divulged everything you have, as counter intuitive as this may sound, it is what is required in mediation. Disclosure should also include of all debts, especially those secured by marital assets. Keep all documents and receipts. Plan your strategy, and work with you mediator to execute your tactics when you have your confidential and private meetings outside of the general mediation sessions. Write a list of what your goals are, what do you want and need, keeping in mind what your partner is wanting. Be prepared to negotiate to keep everything you want.
One of the most common mistakes made by divorcing couples is focusing too much time and energy on establishing fault. This certainly can be explored, and should be to a certain extent, by the mediator to aide the healing process. Often parties are afraid that if they agree to any fault that they will be penalised financially. However, divorce and finances are treated completely separately. It is very rare for behaviour to impact financial award in a divorce, therefore, fighting over fault is nothing more than a fear reward being triggered. A trained mediator will help a couple traverse this painful course in a psychologically safe environment for all parties involved without penalty.
Begin preparing by getting a separate journal that is completely private and safe so thoughts, feelings, information, and research can be captured. Ask yourself, what do I want to achieve while listing the objectives in order of priority. Now do the same for the other party, list those answers in the same manner as your own. Think of how you can best help the mediation and, ultimately, yourself with items such as healthy communication. List areas of communication that you feel you can help to ensure the mediation discussions and understanding can move forward in a better manner.
An important research item is how to best proceed with their divorce, like mediation and what trained divorce mediators would they like to work with. Within this journal you will begin strategizing and preparing to negotiate for your best agreement; all of which your mediator will help guide you through.
Writing down key information that will be required for your divorce is also helpful. For example, the date you were married, or the date you were officially together as an AIP couple (adult interdependent partnership which is Alberta’s common law title). Other dates to include are the date of your separation, the names and ages of your children. Your current living arrangements and addresses should be recorded as well. This could mean one partner has moved out of the family home, or that you’re currently living “separate and apart” in the family home.
Identify and list assets and debts, who owns which asset and debts, keeping in mind some will be marital [jointly shared] and others separate [personal]. Any items acquired during the marriage with marital funds is marital property, even if only one partner uses it. When listing debts, ensure you are separating joint debts, from separate debts. Joint debts may include items such as bank loans, credit cards, mortgages, car payments, and so forth. While personal debts would include items such as student loans or credit cards acquired before the marriage. You should also begin the notation of all the property and financial items you want to keep. From electronics, clothing, and gadgets, to any items that are sentimental.
When children or pets are involved, begin creating a parenting plan for custody and visitation, plan that is the best for those involved. Think about the ideal options that best support a repurposed relationship. Keep in mind, when there are children, divorcing parents need to plan how to best approach their business, the business of co-parenting and raising healthy, good citizens. A trained mediator will also help with this process, ensuring the best interests of their children as well as.
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