Jodi Armstrong, Partner, Family Law
There are certainly some similarities between a mediation report and a separation agreement: both documents outline agreed upon terms and both, at least appear, to have an air of finality about them. Why then, once parties have gone through the mediation process and have received a final report setting out their agreement, are they still being strongly advised to take the next step and enter into a separation agreement?
The answer is simple: the mediation report is not a legally binding contract.
Many, but not all, mediators are also lawyers. When a lawyer is acting as a family mediator, however, he or she does not provide legal advice to either party. The lawyer/mediator can provide useful legal information but, while mediating a family dispute, he or she is acting as a neutral third party and is attempting to assist separated spouses with reaching a meeting of the minds in relation to their various family law issues. Once the parties have come to an agreement, the mediator will prepare a mediation report outlining the particulars of that agreement and will direct the parties to take the report to their respective lawyers for independent legal advice.
Once the mediation report is in the hands of the lawyers, the parties will have the opportunity to discuss the terms and to get advice with respect to whether the mediated agreement is consistent with their rights and obligations under the current law. Assuming that, with that legal advice, the parties are still in agreement, the lawyer will draft a separation agreement with appropriate releases. The separation agreement must be (1) in writing; (2) signed by the parties; and (3) witnessed – at which point, it is a legally binding contract.