Mediation occurs when the parties use a knowledgeable and impartial third party to arrive at an agreement for mutual responsibilities and obligations. The agreement apportions property and charts a post-relationship course for on-going responsibilities relating to children and support.
Throughout the mediation process, each party is invited to perform a direct and meaningful role in negotiating a final settlement of their affairs. This controlled and reasonable atmosphere encourages both parties to provide input into the difficult decisions that surround custody, access and support to children, and dividing the assets and debts.
Mediation is not always possible for every couple. In relationships characterized by physical or emotional abuse, or the domination of one spouse over the other, the parties may not be able to find common ground. In these cases, the protection afforded by the court system may be the only viable option.
The litigation system is valuable as an impartial dispute resolution mechanism available to persons who cannot come to some agreement by other means.
Generally speaking, a litigated resolution is imposed upon the parties by a judicial officer who has reviewed the positions of the parties as presented by their respective counsel. Parties engaged in litigation tend to become entrenched and often uncompromising during the process.
The judicial officer attempts to render a verdict that is impartial, fair and impersonal. Given the limitations of the system and the need for certainty in the decision itself, these judgments are often inflexible and difficult to change.
Litigation can be expensive. It is almost impossible to accomplish anything through the litigation process for less than $3,000 per party and costs can easily escalate well into five figures for each litigant.
Mediated settlements provide more flexibility if a variation of the agreement is required. Agreements often evolve as the needs and activities of children and parents change. The mediation process itself requires that the parties approach their difficulties in a reasonable and conciliatory manner.
When parties can voluntarily achieve a reasonable resolution at the very time their relationship is most strained, it is likely they will be able to do so again should circumstances require renegotiation.
The mediator acts as chairperson for the meetings by isolating the issues in dispute and marshaling information to reach a viable solution. A mediator can also help the parties to cope with the realities of their post-marital world.
The objective of mediation is to arrive at a mutually acceptable agreement that each party can review with independent legal counsel who will ensure the terms are fair according to the law in Ontario.
It is difficult to estimate the duration of a mediation because each situation is unique. It is rarely a waste of time — in the event that the mediation breaks down, several issues will likely have been resolved and can contribute to the litigation process later on.
A closed mediation process means that the parties (and their lawyers) are agreed and assured that information revealed to the mediator will not be used in any future court proceedings, should counselling prove unsuccessful. The parties will be asked to sign the form of acknowledgment included in the agreement between the mediator and the respective parties. The parties and their lawyers may then feel free to discuss the situation openly with the mediator. It is the practice of this office that when parties elect to proceed by closed mediation, that format shall be adopted.
The alternative of open mediation means there are no privileged communications between the mediator and the parties or their counsel. It is the usual practice for the mediator to prepare a report on the outcome or progress of the mediation when the process has been completed or has broken down. This report, together with the testimony of the mediator, may be used in related proceedings.
Throughout the open mediation process, it is important for the lawyers and mediator to remain in contact should concerns arise in the case. Collaboration is essential and can be instrumental to a positive outcome.
Campbell Clark Yemensky prepares the following documentation for discussion purposes to facilitate mediation for our clients:
- Net Family Property Statement that describes the relative positions of the parties re: assets and liabilities;
- support calculations describing various scenarios for support;
- draft Separation Agreement; and
- draft Financial Statements.
We will prepare a package of disclosure and a Separation Agreement for your counsel to review independently. We will also provide viable legal advice relating to the draft agreement without the necessity of further exploration or disclosure requirements.
Campbell Clark Yemensky will draft a document that encompasses the principles agreed to during the mediation. We then request that each party review that agreement with their respective counsel who may negotiate amendments. We will be pleased to revise the agreement upon joint direction by counsel and forward a final draft to respective counsel for execution by their client.
Thank you for considering mediation as a practical alternative to litigation and we trust that the process shall prove fruitful.