Mediation as the name implies is a way of settling arguments in a non-litigious way.
Mediation does not necessarily imply sacrificing one’s right to legal service or giving up one’s right rather a middle man called a “Mediator” who mediates amongst the two parties and helps them to find a fairground where none of them will feel cheated.
Divorce Mediation Overview
Divorce proceedings can be messy when spouses split up, they have to reach an agreement several issues, the partners involved might have difficulties in communicating with each other due to emotions, misunderstanding, or distrust.
It is the mediator that helps them to communicate efficiently and make important agreements about their issues.
It can be defined as a volitional settlement process used occasionally and successfully by married spouses who wish to go their separate ways.
A mediator may be a certified solicitor or a social worker.
It is vital that he/she must have an in-depth and vast knowledge of divorce and family law.
Some issues covered while mediating a divorce are listed below:
- Distribution of properties (assets/liability).
- Child custody and parenting time.
- Child support/maintenance.
- Spousal support (alimony).
During the mediation process, the spouses work out an agreement (MOU).
Duties of a divorce mediator
He/she performs the following functions:
- Provides information about the legal system.
- Discusses fairly on child support or spousal support (alimony).
- Enables clear communication by asking questions.
- Facilitates communication between both parties and gives them undisturbed time to speak.
Divorce mediation in Canada– Why divorce mediation?
The caseload per court in Canada is high, mediation will not only help in lessening it, it will also save the two parties’ time that would have been spent attending court proceedings.
In mediation, the two parties are not under the clemency of the adjudicating panel; rather they retain complete control of the whole situation.
As a middle man who is not clouded by emotions, the mediator will help the two parties find solutions that ordinarily they couldn’t see.
Mediation private process and not like the usual court process.
You don’t have to worry over intimate matters of your private life aired with the public as there are no journalists to report the case.
Steps to an effective mediation
There are five steps involved, they are:
In this stage, the mediator is given the background information about the circumstances.
He will now determine how the mediation will take place.
The individuals involved will access the issues which they agree or disagree on, depending on how well they both communicate and the issues amongst each other, the “middle-man” now presents tactics which will increase the odds of with which they can come to a fairground.
In order to achieve success in the mediation process, the individuals involved and the mediator needs to be well informed in detail.
He will now give them all the necessary legal information that applies to the case.
Information on how legal processes interprets who keeps what property, decides child support and custody, dictates alimony and laws dealing with issues like taxes, life and health insurance.
The mediator helps each spouse to extract the motive behind their partner’s needs to some claims in the marriage.
Those motives need to be examined in spite of each spouse’s interest.
They include child custody, property and debt division and alimony.
This stage is best carried out separately so as to listen to individual reasons.
After being armed with sufficient information and knowing the reason behind each partner’s claim, negotiating an acceptable settlement is the next step.
It usually begins with exploring all available and possible options.
With the help of the mediator, the spouses discuss the options until they finally decide on what suits them most.
The final stage will depend on the compromise and acquiescence of both sides.
In this concluding step, the terms of agreement are penned down for the two parties to go through and endorse if they feel is workable.
Prior to signing, they must have consulted with their personal solicitor.
If the issues for the case are simple, a memorandum will be prepared by the mediator outlining the settlement which will be signed by them.
Divorce mediation Vs Court resolution of dispute
In court, the jury can decide throw a plea for conciliation.
This is also known as court-based dispute resolution.
It is handled by a conciliator.
Conciliation is different from mediation.
Matters discussed during divorce mediation are confidential and mediation gives more time for dialogue and negotiations amongst the parties involved.
During court-based dispute resolution, the conciliator assists the two parties to sort out their issues outside the normal court proceedings and oversees the endorsement of all court documents by the ex-couples without fighting.
If the case cannot be settled legally, the conciliator refers them to other ways to handle their differences.
Divorce mediation in Canada– How much does it cost?
In Canada, the consultant fee for mediation fluctuates.
The two parties involved might decide to go private or proceed to court for a public hearing.
Nevertheless, in comparison with divorce cases that occur in court, mediated-divorce is very cheap.
An average divorce case costs about $15,000 and the duration is quite long, while an average mediated-divorce which takes about 3-6 months costs about $3000.
These fees vary from location to location.
When you hire a private mediator, they will charge you on a certain fee.
In Canada, it is estimated to cost about $200 – $400 per hour.
Most times, the fee shared amongst the spouses subject to their incomes when their personal income gap is high.
At times, the ex-couples cover all the cost equally.
Divorce Mediation Overview in Canada– The aftermath
Upon successful outcome, a drafted Memorandum of Understanding (MOU) will be contracted by the ex-couples.
The document contains agreeable details on how money, property and parenting will be controlled.
Failure to follow the laid out terms on the MOU will result in penalties.
When an agreement could not be reached after mediation, the two partners might decide to approach the court or use alternative methods to solve their issue.
Family arbitration and collaborative law session are other possible ways they could find a fairer ground.