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PART 3.1b

MEDIATION

Even if you choose mediation, it is still best for each spouses to also have their own lawyer.

The lawyers provide guidance before mediation about reasonable ranges of settlement, and so having lawyers should help a mediation go quickly.

The spouses jointly select a mediator, and usually reach an arrangement for splitting the mediator's fee. It's wrong for one spouse to force the other to accept their choice of mediator. Mediation is voluntary by definition, so both spouses must freely consent to the choice of mediator.

In certain circumstances, the spouses might hire one mediator who is specialized in parenting disputes, and a second mediator who is specialized in property division and support. However, such an arrangement is not automatic, and if the issues are straightforward, they can often be treated by the same mediator.

There is no judge or decision maker. The mediator is impartial and does not give legal advice.

The spouses remain in control of the process. The spouses must participate actively and respectfully for the process to succeed.

The spouses are expected to communicate and cooperate, and to control their emotions. The spouses are in charge of finding mutually acceptable terms for their separation contract.

If the spouses' lawyers attend the mediation, the lawyers are expected to communicate and cooperate effectively in helping the spouses convert their positions into interest-based negotiations. For example, a lawyer properly trained in alternative dispute resolution theory understands that it is not proper or constructive to use ultimatums or threats while in the mediation forum. Even so, some lawyers are less adept than others with changing their roles from litigating in court (which is based in adversarial positions) to helping the mediator do their job. This requires counsel to abandon their adversarial positions and adopt constructive interest-based negotiations instead. Mediation is sometimes unsuccessful when lawyers don't understand they have to change their approach.

Mediation is faster and cheaper than trial, and people on the trial track often try mediation while they're waiting for their trial date, precisely because it is fast and inexpensive.

If the spouses see a mediator BEFORE they have retained a lawyer, they will be asked to retain lawyers to give them independent legal advice, because it is required to provide this option under Ontario law. Independent legal advice is NOT a process of “rubber-stamping” the mediator's proposed contract. It requires considerable time to review and check the financial calculations and the drafting. The lawyer must usually ask for proof of extensive financial disclosure as it relates to both spouses, and then conduct financial calculations under the Ontario Family Law Act in order to advise whether or not your proposal accords with the legislation.

Your contract can override certain provisions of the legislation, but for your waiver to be valid, and for your lawyer's certificate of Independent legal advice to be valid, you would normally have to be advised of how your bargain differs from the bargain provided under the legislation. This is so you cannot complain later that you did not understand the meaning of the contract which you signed, or that you did not have enough financial disclosure to give your informed consent.

 

 


Continue to Part 3.1c - Dispute Resolution ~ Arbitration
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