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“The obligation of our profession is, or long has been thought to be, to serve as healers of human conflict. To fulfill our traditional obligation means that we should provide mechanisms that can produce an acceptable result in the shortest possible time, with the least possible expense and with a minimum of stress on the participants. That is what justice is all about.”

- United States Supreme Court
Chief Justice Warren E. Burger,
January 24, 1982

 

Mediation

What is mediation?

Mediation is a voluntary family dispute resolution process in which a neutral third party intervenes to assist spouses or partners in the negotiation of a mutually acceptable agreement. A mediator does not have any decision-making authority on the issues in dispute, which remains at all times with the parties. Mediation may be closed, with all communications intended to remain confidential, or it may be open with the mediator to prepare a report on what occurred in mediation. The parties may engage a single mediator to work with them on all issues. Alternatively, they may retain two or more co-mediators from different disciplines to assist them.

The parties may decide to attend mediation alone or they may prefer to have their lawyers present with them. While some mediators are lawyers, when acting in that capacity, they cannot be the legal advisors for the parties. Generally, it is preferable that the parties obtain legal advice prior to participating in mediation. During mediation, a mediator may in his or her discretion provide the parties with general legal information. However, they must seek independent legal advice before they commit to any final and binding agreement negotiated in mediation.

The objective in mediation is for the parties to negotiate a mutually acceptable agreement on all of the issues that may have arisen as a result of their separation. Those issues may include the parenting of their children, child and spousal support, and the division of property. With the assistance of the mediator, they describe their perspectives; they reveal they underlying needs, desires, concerns, and fears; they generate creative options; and they select from among those settlement possibilities that which most completely satisfies their individual and common interests.

While the mediator may inform the parties of the applicable law, they need not restrict themselves to an outcome consistent with what a court might award. At the conclusion of the mediation process, the mediator will prepare a Memorandum of Understanding or Mediation Report outlining the terms and conditions of their settlement from which their lawyers will prepare a Separation Agreement. Alternatively, the mediator may prepare a draft Separation Agreement with the understanding that the parties will obtain independent legal advice and only sign it after their lawyers have made such changes as they deem necessary.

How does mediation work?

I begin my mediation process with an initial meeting with the parties. I inform them of their process options and answers their questions to assist them in making an informed choice. After my initial meeting with prospective participants together, I meet with each of them separately. The purpose of these meetings is to screen the parties as to the appropriateness of mediation for them. The communications made in these separate meetings are private and confidential and I will not reveal to their spouses or partners what was said. Following the decision of the parties to proceed with mediation and my determination that they are appropriate candidates, in consultation with them, I set a mutually convenient date and time for our first mediation session. I prepare my Family Mediation Agreement, which I send by e-mail in advance for their review and consideration.

At the commencement of the first mediation session, I review what I previously told the parties about the process. I present my Family Mediation Agreement, ask if they have read it and have any questions, and request that they sign it. With the signing of the Family Mediation Agreement, the mediation is officially under way. I invite each of the parties to present a narrative overview of what brought them to mediation and what they hope to achieve. After each has done so, I assist them with the identification of the issues in dispute that will comprise their Agenda. An issue is a matter on which they need resolution in order to get to agreement. Together, we determine the information and documents required to work on those issues and assign homework. At that point, I generally adjourn the mediation. I prepare a Progress Report, which will summarize what occurred, the assignments and responsibilities of the participants, including mine, and the issue that we assigned for our next session.

In the subsequent mediation sessions, I assist the parties in the problem-solving of their issues. For that purpose, I use the interest-based negotiation model developed by the Harvard Program on Negotiation. In this process, we focus on the parties’ underlying interests rather than their bargaining positions. I assist them in generating an array of creative options, which we assess. In evaluating their settlement possibilities, the parties will consider the applicable law although they need not limit themselves to their legal rights and entitlements in determining what is best for them and their family. I encourage the parties to negotiate an agreement that maximizes the satisfaction of their interests.

What can I expect from mediation?

If the parties are successful in negotiating a mutually acceptable agreement on all of the issues in dispute, the mediator can prepare either a Memorandum of Understanding or Mediation Report, which summarizes the terms and conditions of their settlement. Alternatively, they could request that the mediator prepare a draft Separation Agreement. Mediators should only agree to do so if the parties have already retained lawyers with whom they will consult. Those lawyers prepare the Separation Agreement in final form to be signed by the parties whose signatures they will witness. If an issue emerges as to its terms, the parties with their lawyers can resume mediation to overcome the impasse. After the Separation Agreement has been signed, either of them may apply to the court for an Order in accordance with its terms or the incorporation of its provisions in a Divorce Order. Alternatively, they can file it with the court for enforcement by the Family Responsibility Office.

How do I find an appropriate mediator?

Most mediators have websites on which they list their qualifications. If you visit a website and the academic and professional background of the mediator is not listed, you should ask for a copy of his or her curriculum vitae or résumé. Of importance in assessing the appropriateness of any mediator is his or her active involvement in one or more of the ADR and mediation organizations, including the ADR Institute of Canada/Ontario, Family Mediation Canada, the Ontario Association for Family Mediation, and the Family Dispute Resolution Institute of Ontario. All of these organizations offer mediators the opportunity to obtain a professional designation, which they list among their qualifications.

What else can I read to learn more about mediation?

Bush, R. A. B., & Folger, J. P. (2005). The Promise of Mediation: The Transformative Approach to Conflict (2nd ed.). San Francisco: Jossey-Bass.

Fisher, R., Ury, W., & Patton, B. (2011). Getting to Yes: Negotiating Agreement without Giving In 
(3rd ed.). New York: Penguin.

Folberg, J., & Taylor, A. (1984), Mediation: A Comprehensive Guide to Resolving Conflicts without Litigation. San Francisco: Jossey-Bass.

Friedman, G., & Himmelstein, J. (2008), Challenging Conflict: Mediation Through Understanding. Chicago: American Bar Association.

Landau, B., Wolfson, L., & Landau, N. (2009). Family Mediation, Arbitration and Collaborative Practice Handbook (5th ed.). Toronto, ON: LexisNexis.

Lang, M. D., & Taylor, A. (2000). The Making of a Mediator: Developing Artistry in Practice.
San Francisco: Jossey-Bass.

Moore, C. W. (2014). The mediation process: Practical strategies for resolving conflict (4th ed.). San Francisco: Jossey-Bass.

Winslade, J., & Monk, G. (2001). Narrative Mediation: A New Approach to Conflict Resolution.
San Francisco: Jossey-Bass.

Shields, R. W. (2018). Family Mediation and Family Arbitration for the Self-Represented. Toronto, ON: Thompson Reuters.

Where can I find out more about mediation?

ADR Institute of Canada
www.adric.ca

ADR Institute of Ontario
www.adr-ontario.ca

Association of Family and Conciliation Courts
www.afccnet.org

Association of Family and Conciliation Courts – Ontario Chapter
www.afccontario.ca

Family Dispute Resolution Institute of Ontario
www.fdrio.ca

Family Mediation Canada
www.fmc.ca

Ontario Association for Family Mediation
www.oafm.on.ca

© 2009 – Family Dispute Resolution. Mediation, Arbitration and Dispute Resolution Services in Burlington, Oakville, Ancaster, Dundas, Hamilton