MEDIATION AND MYTHS: WHAT IS IT REALLY?

In our continued effort to educated our clients and potential clients, we're re-posting this educational piece:

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Why did divorce mediation come about? The mediation movement first involved lawyers in the 1980s. It came out of a desire to offer a range of process options to clients, recognizing that some of them were totally unsuited and unwilling to litigate and that the court process was random, unpredictable and expensive. These days the situation has become even worse.

Mediation is a different process. I came to learn of the process and appreciate its power when as a paralegal in Ontario, I was asked by two dear married friends to mediate a separation agreement for them.

I told them that I did not know what a separation agreement looked like and I had only completed one course in mediation and one in family law during my two years in law education. But they insisted. They feared that the one house asset they had would belong to the lawyers if they used the courts.

Certainly, this first case was a challenge for me. Talk about a conflict of interest; knowing both parties so well. However, my background in counselling students and working with people all my life on an emotional dynamic level in theatre assisted me greatly in wading through a lot of emotional issues between them and finally getting to an effective agreement.

From a client's point of view it's invaluable to set your own agenda and it's a much more trusting process. It's a process where both parties can communicate directly with each other, with the support and guidance of the mediator/master communications expert, so that solicitors don't have the opportunity to communicate badly on behalf of their clients, which can result in miscommunication and unnecessary aggravation of an already delicate situation.

Mediation is a process where the client can truly understand their partner's financial situation, rather than make assumptions or basing their calculations on supposition instead of hard facts, shared openly during the mediation sessions.

Case in point, it has not been an unusual event to have partners at logger heads over an issue than quickly resolves itself once they get down to the business of the numbers and learn that an issue did not really exist once the facts where clarified and understood.

In the mediation business we learn that the first stage of listening to each other without reactions, without defence, results in introducing doubt in their own position which opens the doors to options. And more important than any of that, mediation is a process that's respectful to the needs of children on separation. It's a process that helps communication in the long term, not just in the short term.

I am often asked if mediation will put marriage back together. As far as mediation is concerned, there is still many who think that it is somehow to do with reconciliation and that mediators are linked to marriage guidance counsellors. I make it clear to clients that we are future focused and that it's all about separating.

I tell clients, "I am not in the business of promoting separation but if this is the next important step in your lives, I am here to assist you in moving on efficiently. So mediation is not about reconciliation.

Another myth is that mediators will just sit back and allow the financially astute party to take control but skillful mediators are quite capable of wading in and addressing power imbalances without creating a bias, addressing difficult issues and searching for financial information if it appears to be lacking.

A few mediators, are Comprehensive Family Mediators who have training in divorce financial issues. My background that qualifies me as such is my Certified Divorce Financial Analyst training.

Couples need to choose their mediator carefully. If the focus of the discussion is complex financial arrangements, then it's very important that the mediator has a financial background, or a legal background, or possibly both because it can be a multi-disciplinary process.

Or if it is all about the children, someone who has a child counselling background. Few have it all.