Separation / Divorce

If you are thinking about separation or divorce, you have likely had this on your mind for a long time. Maybe you are sure about your decision, and you would just like to have information about your options. On the other hand, you might feel conflicted about the possibility of separating or divorcing from your partner. You might also feel a great deal of anxiety, given that separation and divorce is often associated with aggressive litigation that leaves everyone worse off in terms of finances, stability and emotional satisfaction.

You are not alone in feeling this way, but there is no reason to feel isolated in this experience. Mediate to Go® has prepared this section for people facing or contemplating separation or divorce, in order to provide them with more information and reduce the sense of isolation and fear related to the experience.

We believe that finding a mutually beneficial outcome for everyone involved is possible, that is for you, your partner or spouse and kids. Here is some information about some alternative options for you and your partner or spouse, in addition to some forms that may be used and then shared with your mediator, counselor and/or legal advocate.

What is family mediation and what are the benefits?

The primary goals of family mediation are the following, (as described by Irving and Benjamin in Family Mediation, 2002).

  • To establish a collaborative and just process for individuals who choose to divorce
  • To clarify the concerns of each party that are in dispute
  • To provide the couple with the possibility of healing and reconciliation
  • To reduce self-interest and promote the best interests of the child/children
  • To facilitate negotiation between the parties
  • To help the parties settle their dispute in a mutually beneficial way

Compared to a traditional divorce process that is fought in the courtroom, family mediation provides a creative alternative where both parties may achieve a win-win solution. Mediation encourages and facilitates communication between the parties so that it becomes increasingly easy for parties to brainstorm ways to find collaborative and innovative solutions. The outcomes are customized to the needs of each party in the process, which is generally much better than having the court make a decision for the parties.

What is the general process of mediation?

Generally speaking, the following is the process for families that wish to attend or go through a family mediation process:

  1. Parties seek mediation. In many jurisdictions, it is now possible to receive assistance from a mediator that is subsidized by the government or court. Mediation might even be mandatory within your jurisdiction, so some courts will ask if you have tried mediation before they will allow proceedings in front of a judge. To start, you should contact your Department of Justice or local court in order to find out if any programs or procedures are in place to help families in this process. You might be eligible for free mediation.
  2. Parties choose a mediator. Once you are aware of the options for family mediation in your area, then you may choose a mediator. In order to choose a mediator, you should be able to speak to them for free over the phone in order to ask questions such as: What are your rates per hour/session? What if the session goes over time? How many family mediations have you done in the past? Do you have any testimonials or any client statements? Feel free to do a Google search and ask about their credentials, find out which mediation association they are connected with with and whether they have liability insurance. You should be able to contact this professional association in order to confirm they are a member in good standing.
  3. The mediator conducts pre-mediation. The mediator will likely speak with you and your partner/spouse individually in order to determine their readiness for mediation. Remember, mediation is a confidential process, and the mediator themselves should sign an agreement with both of you that ensures that they will remain neutral and impartial throughout the process, promising not to favour either side during the entire process. At this point, the mediator is also likely to encourage both of you to retain legal counsel and also seek the help of other professionals prior to and during the mediation process. Remember, mediators do not provide advice to the parties about the "content" and of the conflict or dispute. Rather they help parties communicate effectively to resolve their own issues. As a result, mediators should not provide you with legal advice per se, as this might jeopardize their neutrality and impartiality.
  4. The mediator conducts the mediation. The mediator that invites all you and sometimes your lawyer to attend a meeting process. If you have not already signed an Agreement to Mediate, they will do so before the session begins (Mediate to Go now offers these digitally). The mediator will start with their opening statement, to talk about how the session will proceed and determine are any ground rules that must be respected. Once this is done, the mediator might ask each side to present an opening statement [if the mediator wishes to do this, they will generally provide you with information during the pre-mediation]. The mediator will set an agenda that works for both parties in order to address the main issues to be resolved. Frequently, the main issues addressed in family mediation are related to parenting coordination, finances and property, and how all of these should be divided and/or shared.
  5. Caucus. At any time during the mediation, either party is welcome to request a private meeting either with or without the mediator and the other party in order to discuss any questions, concerns or ideas in private. These sessions are completely confidential, although you may ask the mediator to reveal certain parts of information or ask the mediator to negotiate on your behalf with the other party. Remember, mediators are specialists in conflict resolution, so be sure to ask them a lot of questions, whether that is during the session or in private during caucus.
  6. Settlement and/or Final Agreements. Once everyone has agreed on how to resolve all of the issues, either the mediator or the party's lawyers will draft what is known as the Settlement Agreement, and/or other forms to be respected that relate to the agreement between the couple (such as a Parenting Coordination Agreement). Mediators are likely to ask that this agreement be extremely specific and also has contingency plans, in case something goes wrong or something changes in the future. Everyone will need to sign the agreement and forms to promise they will respect the outcome. It is essential that you respect the confidentiality provisions as well, as they are legally binding.

Although this all might seem of little bit complicated, the mediator will guide you through the process. Ask as many questions as you like, and be sure to engage in the process. Although you might feel a bit of resistance and it might be challenging to address the conflict head-on, try to remember the benefits of resolving the conflict collaboratively. Just imagine how expensive it would be to fight for months or years in the court system. Imagine the possible damage to your children’s relationships between one each other with you and/or your spouse. With all of that fighting, everyone looses in some way. At the same time, mediation is voluntary, and if you feel like you are not getting a fair deal, or your lawyer has advised you to not participate, then give it some serious thought.