A. Mediation is a form of alternative dispute resolution. It lets people in conflict develop a mutually acceptable agreement with the support of an impartial professional who guides the negotiation . The term "alternative" refers to using a different method than court.
The mediator takes no sides and does not represent one party's interests over the other's. Instead, the mediator facilitates communication between the parties in a way that emphasizes areas where the parties are in, or close, to agreement, and then works on looking for areas where each can be flexible enough to make a compromise both feel is fair and reasonable.
The process is voluntary and confidential.
The Attorney General recommends that separating couples (or other family members in conflict) who cannot reach a settlement on their own enter mediation as a means of resolving their differences, and to think of court only as a last resort, after mediation has failed.
Monica has more than 20 years experience working with couples in conflict and families going through divorce. Her familiarity with issues of concern can help answer questions for couples and families experiencing difficulties now.
Q. What are the benefits of mediation?
A. Many clients point to the calm, non-confrontational atmosphere as the best part of the process. Since mediation emphasizes areas of agreement - and, in cases where children are involved, their best interests - rather than emphasizing the individual positions of opposing parties, participants typically comment on how much less stress was involved compared to reports of friends or relatives who went through litigation. In the words of a client, mediation
"…..allowed us make decisions about our future separate lives with peace and dignity."
Mediation can be very time-effective. Subject to availability of the mediator, participants can begin the process as soon as they wish, and choose appointment times according to their own convenience. They need not wait for a distant court date, nor work around the time assigned to them.
Mediation can also be a highly cost-effective method of resolving conflict. Clients pay one professional fee rather than two (as would be the case in engaging a lawyer for each party), and can choose to split the hourly rate. Hourly rates also tend to be significantly lower than traditional legal fees.
One of the most important benefits of mediation is how the resulting written agreement can be custom-tailored to the parties' preferences. In cases where the parties choose to go to court, it will ultimately be the judge who imposes the decisions, which then become legally binding upon the parties. By contrast, mediation allows the parties to reach agreement on the issues of mediation in a way they personally feel works best for their family's unique needs, and which leaves room for creative solutions that may not be considered in a time-pressed courtroom.
Civil and commercial mediation cases usually involve parties who need not see one another again after the process concludes. But in the case of families, most parties need to remain in regular contact with one another after the mediation process concludes due to ongoing shared responsibility for their children. Engaging in mediation can help preserve communication between the parents at an effective level rather than seeing it deteriorate as the relationship unravels. For obvious reasons, preserving the quality of parental communication is in the best interests of the children. Some clients have even reported that tension-defusing techniques practiced during the mediation process have had an ongoing positive effect on co-parental discussions after mediation ended.
Q. What types of mediation are there?
A: There are two main types of mediation: family, and civil/commercial.
Family mediators work with couples in process of separation or divorce, family members experiencing cross-generational conflict, those going through transitions such as new members or blending, and so on. There is also a sub-category of family mediators known as child protection mediators, who work with families drawn into the child welfare & protection system.
Civil/commercial mediators work with individuals engaged in business disputes, workplace conflict, contract disagreements, and so on.
Monica specializes in family mediation. If you wish to pursue civil/commercial mediation or child protection mediation, Monica would be pleased to refer you to her office colleague who specializes in those forms of mediation.
Q. How does mediation work?
A. There are 4 phases: initial consultation, intake, joint session(s), creation of document.
Initial consultation: this usually takes place over the phone or in person. The parties share the basic outline of their case, and the mediator provides information about his/her services and the process. Monica offers initial consultation free of charge.
Intake: The mediator holds a session with each party separately. This can be done virtually or in person. The purpose of the intake session is to become familiar with each party's candid individual perspective and concerns, free of any "filtering" that might take place if the other party were present. The mediator may also review any relevant documents the parties share which have bearing on the issues of mediation.
Joint session: Parties and mediator sign an agreement with one another, outlining their individual roles and responsibilities during the process. Negotiation then begins, and continues until the issues of mediation are resolved or a decision made to postpone consultation on that item to a later date. Number & complexity of the issues, together with willingness of the parties to work together to find common ground, will dictate whether repeat joint sessions are required or whether the initial joint session is sufficient.
Document Creation: The mediator writes a document itemizing all decisions made by the parties and shares it with them for their review and any corrections. Once the parties have decided that no further changes are necessary, the mediator provides each with the final, hardcopy version.
After the document is provided, the mediator's role is complete. The parties can choose to each seek input from a lawyer to become educated about their rights and responsibilities regarding the decisions in the document prior to signing it (this choice is Monica's recommendation), or they can choose to to sign it as is. with the addition of a witness' signature.
Q. What if I want to participate in mediation but the other party is somewhere else? What if I want to participate in mediation but we prefer/are not allowed to have direct contact?
A: In situations where parties wish to involve a mediator but are not currently in the same geographic location, or in situations where it is not advisable or preferred for the parties to be in the same room, 3-way phone calls or videoconferencing can be arranged.
In situations where 1 or both parties prefer not to engage in face-to-face contact, or where such direct contact is prohibited (for example, if a restraining order is in effect), it is possible to engage in shuttle mediation.
There are two kinds of shuttle mediation: a) Simultaneous, in which the parties are located separately - for example, in separate rooms of the same office - with the mediator travelling between them to carry the negotiations forward. Another example would be by text, in which the mediator communicates with both parties but they do not communicate directly with each other in that time frame. b) Asynchronous, in which the mediator consults with the parties at separate times - for example, by phone or email on separate days with separate parties.
Pros of shuttle mediation: - increase in likelihood of successful outcome in cases where communication may deteriorate if the parties speak directly with one another, - allows parties with restraining orders or safety/interaction concerns to feel comfortable while working towards resolution of the issues between them.
Cons of shuttle mediation: - because consultation takes place separately rather than altogether, it can take a bit more time.
Q. How should I choose a family mediator?
A. Clients can look at two aspects: - qualifications & experience, - personal style.
In terms of qualifications, a client can ask questions about whether the mediator: - has received education in a relevant field, and at what level, and whether it was at a reputable post-secondary educational institution, - completed a practicum in the field under the supervision of a qualified senior mediator, and how many hours that involved, - is accredited by a professional overseeing body which holds him/her to a strict professional and ethical standards, - has significant experience working directly with couples/families, including those experiencing conflict.
In terms of personal style, a client can form an impression from the way the mediator interacts with him/her during initial phone calls, from the kinds of questions the mediator asks to learn more about the client's unique needs, from the information the mediator provides about how the next steps will look, from the way the mediator takes steps to maintain neutrality between the parties and transparency about the process, from the feeling the client develops about the mediator makes him/her feel "heard".
In Monica's case, she informally assisted separating couples with develop parenting & financial plans for more than decade prior to entering formal training at York University. She graduated from the family mediation program of York University and completed a full year as an intern, co-mediating a large variety of family mediation cases. She is now an accredited member of the Ontario Association of Family Mediators.
Q. What areas are covered? A. Monica provides the following mediation services:
draft Separation Agreements
Memoranda of Understanding
Division of Assets & Liabilities
Cohabitation & Prenuptial Agreements
Cross-generational and other types of interpersonal Conflict