What Happens During Divorce Mediation

The realization that a marriage relationship which once held the promise of a bright future for two people is coming to an end, is almost always a bitter pill to swallow, however divorce mediation can help guide frustrated couples successfully and safely through the potentially disastrous minefield of divorce.

The trauma of divorce can also be made worse because of the inherent issues that need to be addressed in light of the physical and emotional separation. Such issues which can include decisions on alimony, property ownership/sharing, parental rights and obligations, future taxes, and who gets the dog, have to be made and resolved so that both parties feel there is equity and fairness in the divorce process. In many instances however, couples find difficulty in achieving this goal and need a level of unbiased mediation that will represent the fears, anxieties, hopes, and expectations of both parties in an equitable, non-combative manner. This is where the mediation process for divorcing couples can be helpful.

The divorce mediation process is becoming one that is quite common. Unlike the typical court battles of divorce, mediation is a cooperative process that is meant to help individuals find lasting solutions. If you are looking for a way to ease the pain of your divorce, you might want to consider meeting with a mediator.

A courtroom is, by its very nature, a place that is combative. Mediation, however, is the opposite. The parties are gathered together in a space that is meant to be neutral, with a third party available who is only there to facilitate an agreement. This allows the couple to spend time working things out without having to keep track of who is winning or losing, creating an atmosphere of safety and trust that allows both to make rational decisions. The mediation process is a good way to allow parties that have a great deal to say a chance to speak without having to worry about the court.

How Divorce Mediation Works and What are its Benefits?

Mediation is a form of dispute resolution and a negotiated settlement. It is a social support facility that allows divorcing couples to work out the terms and conditions of their divorce. This is a process in which two individuals meet to deal with the specifics of a divorce agreement. Such agreements are usually made to deal with divorces that include child custody, as this represents a method of compromise that tends to end with less lasting animosity between the two parties and places a minimum of stress on the children.

It is possible for couples to talk about their divorce settlement by themselves but few are able to complete the process in this manner. In most cases, ill feelings surface and get in the way. Having a mediator in between significantly increases the chances of a successful agreement. Mediators can diffuse tense situations and get the discussion back on track if it is in danger of going astray. It is also considerably cheaper on average compared to court litigations.

The couple enters into this process voluntarily and is facilitated through the process by a trained mediator who is a neutral third party to the discussions, plans, and agreements.

Generally, in the mediation process, the couple is provided with the support mechanism to decide on the terms of their divorce during meetings with the mediator which usually occur once per week, once every two weeks, or monthly. If their efforts are not producing the desired results, the mediator steps in and provides guidance that keeps the communication going, helps create an atmosphere of understanding and caring, and assists overall in helping the couple move toward making mutually satisfying decisions in the shortest possible time.

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.

Merits of Divorce Mediation

Crafting your own solutions

The unique part about divorce mediation is that it lets the parties involved craft their own solutions. Instead of being beholden to the letter of the law, the parties can craft a solution that works for their own unique circumstances. This is a great way to solve problems that do not have any basis in the law, and to come up with ways to make things work that might otherwise be possible to solve. Giving the parties a chance to work on their own provides a common ground from which the two can begin to create their own new, post-marriage lives.

Above all, mediation simply works. Rather than spending your time in the impersonal court room or arguing through attorneys, you have a chance to actually talk to your former spouse and work things out. This allows you to craft solutions that actually last – not the stopgap measures that are so common in the world of law. By being given the chance to actually create a lasting solution, you are given a unique opportunity to move on with your life. This helps to make the process less painful for everyone involved.

Emotional support

Very importantly, mediation provides the divorcing couple with emotional support which along with quality discussions over time can help them to see each other as partners working together for the best deal for each individual, rather than enemies seeking to destroy each other. This situation is particularly critical when children are involved and the couple will more than likely have to deal with each other in the future.

Privacy

Another plus for this mediation is that it is a private process among the couple and the mediator, as opposed to the litigation court process where the public is privy to all the couples’ intimate, private affairs that they might want to keep to themselves.

Safe space, neutral ground

Mediation also provides a neutral ground on which the two parties can meet. Working with your partner (or soon-to-be-ex) can be difficult if one of the two of you constantly feels like you are not able to get a word in. Mediation allows for a neutral third party to create a safe place in which the two other parties can communicate without fear of reprisal. While the words said in mediation can certainly hurt and problems can arise, this kind of free space can also allow individuals the safety to finally express their feelings and to work on the problems that have occurred during the relationship.

Working on the future

More than anything, though, mediation helps to set the stage for your future. Whether the process mends a rift in the marriage or not, it helps couples to develop the skills necessary to communicate through the remainder of the process. Separation may be seen a step towards divorce or a step towards reconciliation, but the truth is that couples must continue to work out issues no matter how they choose to go forward with the relationship.

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.

How Long Will The Divorce Mediation Process Last?

The duration of the mediation process varies and is dependent on the nature of the issues and the level of success the couple has with their discussions and decisions. The more willing each party is to communicate and maintain positive results-based behavior, the faster the process will end with the desired results for all involved.

Mediation can go as quickly or as slowly as the couple wants it to. They dictate when the meetings are going to be held. Discussions can be arranged every day, weekly or monthly depending on what works for both parties. It could be over in a week or drag on for months. The complexity of the issues involved will determine the length of the process. Those that have a lot of properties will need to consider their options carefully. People are often unwilling to yield if they feel that they deserve more.

Generally though, once there is cooperation from each party, mediation can be achieved in approximately 4 to 10 sessions.

The 5 Stages of Divorce Mediation Process

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

The Cost of Divorce Mediation in Ontario

The cost of mediation can be significantly lower than that of court litigation — once the couple is dedicated to working their issues out within a reasonable time frame. On average, litigated cases can cost three times as much as mediation cases. For instance, in 2005 litigated court cases cost an average $15,000, while on average, mediation cases cost the couple $3,000. What is more, the litigation cases lasted approximately 18 months while the mediation cases were over in approximately 90 days.

Is Mediation Right For Every Divorce Situation?

Unfortunately no. Some couples, or one party, might not be willing to discuss the terms of their divorce with their soon to be ex-spouse. In that case, the couple will go the route of litigation.

When Mediation Works Best

Mediation works best in situations where there is conflict, though both parties wish to reduce it and to come to an amicable understanding. Couples going through a divorce, especially if they have children, have found mediation useful.

These couples have taken part in the mediation process in order to reach a solution for custody arrangements, the division of property and financial arrangements.

When Mediation Isn’t the Solution

Do not enter mediation proceedings if you believe that they are going to help reunite you with your former spouse. Mediation isn’t marriage counseling – it’s a way to reach an agreement in a dispute.

Furthermore, if you or your spouse suffers from mental illness or substance abuse problems, mediation is not the way to go. Also, if you or your spouse has engaged in domestic or child abuse, mediation will not be a good tool to help you resolve your problems. In these cases, discuss alternate methods of dispute resolution with your lawyer.

Related: Divorce Mediation vs Arbitration

Mediation is not perfect, but it is often a better solution that simply going to court. While not appropriate in every circumstance, it does help many people to solve their own problems and create a more amicable relationship between two former spouses. If you are looking for a less painful way to get through a divorce, you may want to speak to your attorney about finding a mediator. The divorce mediation process is not always quick, but it can be a painless way to get a divorce.

Get Professional Help in Divorce Mediation

Divorce mediation lawyers can give invaluable assistance in sorting out the division of properties and the custody of the children. They can provide advice every step of the way so that their clients can understand all the legal terms and procedures. This enables people to make important life-changing decisions with more confidence than ever before. Lawyers also protect their clients by reviewing contracts, making sure that certain rights are protected and that fair distribution is upheld.

Schedule a Free Consultation to see if mediation is right for your case.

If you or someone you love is struggling with the difficulties of divorce and would like to hear if the divorce mediation process is the right choice for the situation, expert information and help is available from our divorce lawyers. Our divorce and family lawyer Lorne Fine is fully-certified in Collaborative Law. We also assist people with mediation or arbitration in resolving the issues arising from their separation and divorce. Our family law firm in Toronto, Markham and Oakville is dedicated solely to family law and has vast experience in helping families in distress restore their lives respectably and affordably.