Thomas Dart, Partner, Family Law
We have all experienced the breakdown of a relationship whether it is our own or whether it is the relationship of people we know and love. The traditional way of handling the breakdown is to have each party go to a lawyer, obtain legal advice about their rights and obligations and then have the lawyers try to negotiate an agreement. If an agreement cannot be reached, one of the parties begins a court application and then “the fight” really begins – and the expenses rise. The already bad relationship only gets worse. Children are directly affected by the conflict. Everyone loses – even the lawyers because they can’t get paid for all the time required to solve the problems in the court system and the court system itself because it can’t manage all the cases that pour through the doors.
The parties to the court proceeding are really handing over the power of solving their problems to professionals: to their respective lawyers, and to the judge who ultimately must decide their future for them. Is there a way to help people solve their own problems and reduce the animosity and harm which the adversarial nature of the court proceedings create? Fortunately, yes there is.
A competent and certified family mediator who knows the law and, more importantly, the impact of separation on children can aid separating parties in many ways. The mediator can provide all the information the parties need to make informed decisions which will impact them for the rest of their lives. The mediator can assist them in opening up discussion around the problems they are facing so that they can seek and find mutually acceptable solutions. The mediator can also help by obtaining any necessary therapists, coaches, valuation experts and any other expert who might assist them in reaching an agreement. If the mediator successfully assists the parties in reaching an agreement, the mediator will prepare a memorandum of the agreement. The mediator cannot draft the actual legal agreement which the parties must sign to complete the process. The mediator must refer them to independent legal counsel who will prepare their actual legal agreement for them. This is to make sure that the parties obtain appropriate legal advice before signing the agreement so that they can be assured that they have made the right decisions. This provides a safeguard for anything that might have been overlooked in the mediation. If the lawyers come up with a reason why the agreement reached in mediation should not be completed, the parties can then return to the mediator with their lawyers to work out another solution.
In other words, the parties themselves can take control and through the mediation process can learn all they need to know to make well-informed and good decisions which are mutually beneficial and protect the children from any conflict. In the mediation process, the parties do all the work under the direction of the mediator. With all the work completed under proper supervision, the lawyer’s job in drafting the agreement then becomes much easier and therefore much less expensive. Parties who can mediate a settlement pay much less then parties who turn over the decision-making power to others.
Mediation may not work if one of the parties suffers from a mental health problem or if there is serious domestic violence but it can work for the vast majority of people who separate. Anyone who wants to learn more about mediation and other ways of resolving problems arising from separation should visit the following websites: www.fdrio.ca or www.fmc.ca.
Barriston also offers mediation in the form of Barriston Resolution Services. Take a look at our website for more information.