Domestic Agreements
Is Mediation a good option to resolve the issues arising from my separation?
May 7, 2012 | 
Author There are several reasons why mediation is usually a good option for a resolution of the issues arising from the parties separation, namely, as follows:
1. Cost – The parties will share the cost of the mediation. It is cheaper than each party retaining his/her own lawyers. The parties will not have the bear the cost of numerous letters between their respective lawyers, court appearances etc.
2. Speed – Mediation is much faster than litigation. Court proceedings may last for years. Mediation utilizes a series of meetings (with all parties or just the mediator separately with each party) in order to attempt to arrive at a solution to the parties issues;
3. Control – Unlike court proceedings, in mediation you are not asking a third party to impose a solution to your problems. You are working with the opposing party to arrive at a solution that is mutually agreeable. Since you are working with the other party, mediation is not a recommended dispute resolution system if there is a history of abuse or violence as between the parties.
Mediation is a voluntarily process. A mediator cannot force a resolution to your issues. However, it is usually cheaper and faster and less stressful than the headaches that are usually associated with court proceedings.
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How can I use mediation to resolve the issues arising from my separation?
There are several methods of resolving the issues arising from the separation from your partner through mediation. Firstly, you and your partner can retain a mediator to facilitate a resolution of the issues. It is important to note that the mediator will not act as the lawyer for you or your partner. If the Mediator is using an evaluative form of mediation, he/she may advise what he/she thinks that a judge will do, but the Mediator will not give you legal advice. The Mediator will insist that once there is a final resolution on all of the issues and the terms are incorporated into an Agreement, that each party obtain “independent legal advice” to confirm that each party acknowledges their rights and obligations under the Agreement and that they are signing the Agreement voluntarily. Secondly, it is also possible for each party to have his/her lawyer during the mediation and the mediator will act as a neutral third party to try to facilitate a resolution of the issues. If an Agreement is reached, the parties each review the Agreement with their own lawyer. This process is helpful when the parties each have lawyers and require a third experienced party to try to assist them in bridging their differences and thinking of creative solutions to address the interests of both parties.
What are the different mediation styles?
For any dispute brought to mediation, mediators can approach the mediation using one of the following mediation styles:
Evaluative Mediation – This is when the mediator evaluates your position and voices his/her opinion as to what a judge would do in the circumstances. The mediator then attempts to arrive at a solution that addresses each of the parties legal rights (as opposed to their interests), The parties have less control in arriving at a resolution of this matter;
Facilitative Mediation – The disputing parties maintain control over the process. Unlike Evaluative Mediation, the mediator will not voice his/her opinion as to how to resolve the issues. The mediator searches for underlying interests and facilitates the parties at arriving at options in order to generate a solution to their issues.
What is the process of Mediation?
There are usually five stages to mediation:
Stage 1: Introductions
- Mediator introduces themselves and explains the rules for mediation (i.e. act courteous to each other, no arguing, take turns speaking, either party or the mediator can terminate at any time etc.)
Stage 2: Listen and Clarify the Stories
- Mediator asks the parties to present their story and clarifies any of the facts
Stage 3: Clarifying the Problem
- Mediator clearly restates the underlying concerns of each disputant (i.e. “Am I hearing you correctly when I hear you say …) and identifies the issues to be examined
Stage 4: Finding Common Ground
- Mediator asks the parties what they feel needs to happen in order for the conflict to be resolve
- Mediator hears the suggestions that each party makes and asks for their opinions on the suggestions
- Check to see if there is a mutual agreement for a solution. If so, restate it to ensure both understand and agree. Mediator then writes out the final resolution.
- If there is no mutual agreement, Mediator can meet with each party individually and review what they would like to see happen
Stage 5: Final Stage of Mediation
- Mediators check with the parties to see that they understand the agreement
- If there is an Agreement, Mediator may draft the Agreement or Memorandum of Understanding
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What is Mediation?
Mediation is a form of dispute resolution. It is a form of negotiated settlement. A mediator is a neutral third party. He/she will facilitate a resolution of the issues and attempt to arrive at a settlement that works for both parties. Lawyers often say that the “best negotiated settlement is when both parties walk away from the table thinking the other person got the better deal”. If a matter is going to be settled by way of a negotiation, neither party is going to get everything they want. There has to be some “give and take” if there is going to be a settlement. It is important for the parties to be on a “level playing field” (i.e. no history of abuse or violence) and able to express their opinions if the mediation is going to be effective.
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Determining Income for Child Support – Severance Pay
When one obtains severance pay from his/her employer, it is considered income for the purposes of determining child support. Most payors seem to believe that it is an asset rather than income. This is incorrect. Severance pay is income replacement. As such, it is considered in evaluating child support obligations.
The best approach is to treat the severance pay as being paid for over time for the employer calculated the amount and adjust the amount of child support.
Please feel free to contact us to discuss your child support obligation or your entitlement to child support.
Property Division – Contents
It is frequently necessary to divide the contents of the Matrimonial Home. You do not want to pay a lawyer to argue over contents, the cost will likely exceed the amount at issue. As a result, there are several methods one can use in amicably dividing the contents of the Matrimonial Home, namely as follows:
1. sell all of the contents and divide the proceeds of sale;
2. have a “shot gun clause” whereby one person makes an offer to purchase all of the contents of the house, but also must be willing to sell his/her interest in the contents to the other party on the same terms;
3. Don’t fight over the contents. It is sometimes not worth it. Take your personal items and forget about the rest. You can always buy a new couch;
4. one party makes two lists of equal value listing all of the contents in the house. The other party gets to pick one of the two lists. It is a risk as to the list of items that you will end up with, but it is quick and easy;
5. one party makes a list of all of the items in the house (group the smaller items together – ie. bathroom contents). The parties then take turns picking from the list.
It is important to stay focused on the big issues (ie. custody/ access, child/spousal support, and property division) and not get hung up on the small issues. It does not make logical sense to fight over tools or books. The cost does not justify the amount at issue. Stay focused and objective and you will have a successful divorce.
Insurance for Child Support
When there are children of the relationship, or a spousal support obligation, it is important to have a provision in any separation agreement dealing with life insurance. These provisions serve as security for child support/ spousal support in the event that the support payor dies while the dependent is entitled to child/spousal support. The life insurance provision should provide that the support recipient is designated as the beneficiary for the life insurance policy of the payor. If the support recipient is designated as the beneficiary in trust for the child, the Agreement should set out the specific terms of the trust. Once the Separation Agreement is signed, it is important to send the insurance designation to the insurer. The designation should be “irrevocable” so that the payor cannot change or revoke the designation. If a payor does not want the beneficiary to receive the insurance proceeds once he/she dies, the insurer must change the beneficiary.
Please feel free to contact Lorne Fine & Associates to discuss your child support/ spousal support issues.
Financial Disclosure
When commencing court proceedings or negotiating a Domestic Agreement, it is usually necessary to draft a Financial Statement. When completing the Financial Statement, it will also be necessary to obtain all supporting documentation to substantiate the assets and liabilities as listed in your Financial Statement. This can be a difficult and tedious process. If you are unable to substantiate the assets and liabilities as of the date of marriage, you will probably be unable to claim the deduction. If it is discovered that you did not disclose your assets as of the date of separation or the date of marriage, there is a risk that the Domestic Agreement may be set aside and you will be accused of swearing a false statement. It is always important to make full and complete financial disclosure.