Mediation is a recognized family dispute resolution method used by people who are ending a relationship to reach a separation agreement. This agreement might include the division of property, support payments and a parenting plan agreement if there are children.
What is mediation?
Mediation can be a very effective method of helping couples to reach a separation agreement. The mediator is a neutral professional who guides the couple through the steps to an agreement. This involves:
- Intake and screening
- Sign Agreement to Mediate
- Parenting Plan
- Exchanging financial information needed to resolve the property and support issues
- Memorandum of Understanding
When is mediation appropriate?
Before starting mediation, consult a family lawyer who will review all of the family dispute resolution methods with you and give you advice about which options may work best for you.
Before mediation begins, the mediator will interview you and your spouse separately. This will help the mediator decide if the case is appropriate for mediation. For example, the mediator must consider whether there are any power imbalances between the couple or any risks related to family violence.
Qualifications of a mediator
There is no law in Ontario that defines who can be a mediator. However, Ontario mediators may obtain credentials including AccFM, Cert.FRM, Q.Med, and FDRP MED through professional associations.
When to obtain legal advice
Obtain legal advice prior to mediation and in between mediation sessions. This way you will be better prepared for mediation because you will know your legal rights and the range of settlement options.
If you only obtain legal advice at the end — after the Memorandum of Understanding has been completed – then this may add a layer of frustration and delay. Your lawyer will provide legal advice about the strengths and weaknesses of the Memorandum of Understanding and may raise additional issues that you did not consider during mediation. Further mediation sessions may then be necessary.
Some people choose to have their lawyers present for some or all of the mediation sessions. For example, if the topic on the agenda for a mediation session is spousal support, both lawyers could attend that session so that everyone has the benefit of legal advice when this legal issue is up for discussion.
Who can provide legal advice?
Mediators do not provide legal advice. Legal advice can only be provided by a lawyer who is licensed to practice law under the Ontario Law Society Act.
At the end of the mediation sessions, the mediator prepares a Memorandum of Understanding. The mediator typically recommends that each party reviews the Memorandum of Understanding with their own lawyer. When all of the terms have been finalized, the separation agreement is prepared by one of the lawyers.
If the mediator is a lawyer, he or she may prepare the first draft of the separation agreement. Each party will then consult their own lawyers to review and finalize the draft agreement.
What if we don’t reach an agreement in mediation?
If there are some issues that you could not resolve in mediation, you have options. Consult a lawyer to obtain legal advice about which option is best for you. Options include:
- Collaborative law (also known as collaborative process and collaborative practice)