Negotiating the best for everyone - Part 3

July 29, 2013 at 4:00 PM

What happens in mediation?

This is the third of five articles on managing the legal side of separation, published in The Press 10 April 2007

Mediation is an effective means for separated couples to settle their differences. Family Court judges run mediations at the courthouse, but that special process is not discussed here. This article is about mediation done away from the courthouse by private mediators.

Mediation can cover all manner of issues, such as relationship property, day-to-day care of the children (custody), contact with the children (access), which school the children attend (guardianship), spousal maintenance and child support.

The one issue that does not lend itself easily to mediation is protection from domestic violence and associated criminal offending. However, when other issues are settled, the issue of domestic violence often becomes less acute.

The mediation process should begin with the parties signing an agreement to mediate. It protects the parties by ensuring that the discussions are confidential and "without prejudice" (cannot be later referred to in court). It may also record agreement as to who is entitled to be present at the mediation conference: for example, lawyers and other support people.

The mediator will want to talk to the parties separately before the mediation conference is held to explain the process and obtain helpful background information. At the mediation conference, each party will be given the opportunity to make an opening statement. The parties, with the assistance of the mediator, then work out an agenda or list of topics to discuss. The discussion of these agenda items usually focuses on the "facts" what happened and why, and what the parties believe and want.

Once the agenda items have been discussed, the parties move on to the negotiation phase of the mediation. The question usually is: "Despite our differences, what mutually acceptable arrangements can be agreed upon?" Provided a proposed settlement is broadly reasonable and sensible, it is usually best to agree to it, even though it may not be ideal, because the alternative of not settling may be much worse.

During the mediation, the parties may want to talk in private to their support people and the mediator to clarify their thoughts. Once agreement is reached, it is recorded in writing, so that there can be no argument later as to what was agreed.

The beauty of mediation is that the parties can come up with specific solutions that work for them. By contrast, court orders can be rigid and not to the liking of either party. Even if no settlement is reached, the process is still usually beneficial to the parties through spin-offs such as the re-establishment of communication and the clarification of events, issues and viewpoints. This may reduce the scope and intensity of court proceedings or lay the groundwork for a later settlement.

Category: Family Disputes