A mediated divorce presents a strong and valid option for couples who want to maintain control over their lives and decisions and overcome much of the anger and resentment that comes with divorce. However, for some couples, mediation alone is not possible. There is too much emotion in the way. For such couples, a combination of arbitration and mediation can be an alternate approach. Here is a look at how and when divorce mediation/arbitration can help you get through your separation.
The first step in any divorce that wishes to avoid court adjudication should be mediation. The idea behind a mediated divorce is to help the couple get through their anger and conflict, and work out their differences as a team. It can not only allow you to make the best decisions for your family, but can help overcome bitterness and resentment and sometimes salvage a degree of respect between you.
Sometimes, however, the anger and blame are just too great, and you need something more formal to work out your differences. In such cases, arbitration may be the next step.
Arbitration is somewhat more adversarial than mediation, but still avoids the kind of bitter battles that often erupt through a court-adjudicated divorce. It is less formal than a court divorce and is conducted in a conference room using a neutral third-party arbitrator.
Decisions issued by the arbitrator are legally binding but can be reviewed and revised over time. This is especially true in cases of child support and child custody. As parentsâ€™ situations and circumstances change, the need for shared custody and support may also change.
One advantage to arbitrated divorce is that it maintains an informal sense about it, leading to couples feeling they got a better, more fair shake in general out of the procedure. This means that even though the process is more adversarial than mediation, couples are more likely to accept and abide by the terms delivered than many are through court-adjudicated divorces.
In addition, the arbitration process is much faster than a court divorce, and maintains the coupleâ€™s privacy. A court divorce is a matter of public record and all kinds of dirty laundry and secrets can be aired to the public. This is not a concern with arbitration, where your secrets remain yours. Arbitration also saves money, being less expensive than a court case, and allows you to take exactly the time you need to resolve your differences to your satisfaction.
If you are facing divorce and looking for a means by which you can resolve your split without the interference of the courts, a professional divorce mediator and arbitrator can make all the difference in the world. At Jones Divorce Mediation Inc., we have decades of combined experience and expertise in the field of family dispute resolution. For more information, answers to any questions you might have or a free consultation, feel free toÂ read a bit more about the mediation and arbitration process, and get in touch with us today.
Unlike divorce litigation, mediating parties set the pace and the tone for divorce proceedings. Anyone who has made the wise choice to mediate their divorce should arrive prepared to stay on task and to present their personal views on the ideal situation that will follow a divorce.
In order to accomplish everything that needs to be done, divorcing couples will have to address four main concerns before the divorce agreement can be finalized and the binding papers signed. They are, in order of typical emphasis: division of assets, child custody agreements, child support agreements and how the divorcees will handle their ensuing relationship, including any spousal support payments.
Divorcing couples will need to address how each and every asset will be split so that the ultimate outcome will be each former partner receiving marital assets in a rough 50/50 value ratio. Keeping in mind that both debts and property are an asset, the parties must run through every single detail of their collective holdings, including:
Each party is advised to arrange a list of priorities they would like to possess following a divorce, such as a piece of furniture with sentimental value or a vehicle they drove every day. They should come up with a fair arrangement where they can keep the items and holdings they want most while offering the other party fair, equal value in return.
One of the biggest benefits of divorce mediation is that the parents have ultimate control over who gets custody. Each parent can argue their case for full custody, or together they can determine the best ways to share.
Arrangements that must be made include:
Child support is a trickier issue. The child should be able to enjoy a nearly-identical standard of living and quality of life to the one they had before, regardless of custody arrangements. Divorcing parties can consult Canadaâ€™s Federal Child Support Guidelines for suggested monthly payment amounts based on income and number of children.
Finally, the spouses must decide how they will interact in the future. Divorcees can prepare a process for voicing their ongoing concerns in a manner that does not harass the other party. Spousal support, also known as alimony, can also be arranged. Consult the Canadian Department of Justiceâ€™s alimony guidelines for more information.
In the end, both parties should cover the extent of possible issues until no questions are left unanswered.
Divorce is not always cut and dry. Emotions are often high, circumstances are difficult and making agreements can seem next to impossible, leading some to act with the feelings rather than their wit. Though separating from your spouse is stressful, there are some mistakes that you should avoid making during mediation.
Many decisions that are made during the process of divorce mediation can affect both parties for their entire lives, you do not want anything to compromise their validity. Make things easier on yourself by keeping the process smooth. Bad etiquette and making these mistakes, intentionally or unintentionally, will only hinder the process and bring everyone out on the losing end. At the end of the day, you will feel accomplished simply by knowing that you gave mediation your best effort.
You cannot let your emotions control the mediation session. It is normal to experience a marriage of extreme emotions during a divorce, but coming to an amicable agreement about import issues is dependent on you keeping a clear head. Mediation is not the time to lash out or wear your heart on your sleeve.
Before going to your mediation session, consider speaking to a counsellor or therapist, especially if you have already experienced mood swings or negative emotions during the separation. Going to a counsellor will not only help you to have a clear head for mediation, but it will also promote positive health and growth as you are going through your divorce.
It is hard to not be selfish when your world is being flipped upside down, and many divorcing couples forget the wellbeing of their children during the trying process. Be sure to keep them in mind as you are making decisions.
You must forget the past as you enter your mediation session. Look towards the future and decide how it can built with the decisions at hand. Visiting a coach before mediation will help you to develop an action plan before mediation begins.
Refusing to compromise is counterproductive. You must be willing to negotiate terms and remain flexible. Accept that you will not achieve all of your wishes, but that the outcome can be positive if you and your ex-spouse are willing to give and take while making decisions.
Many people are under the impression that all divorce cases end up in a court room. That is not true; couples are able to resolve their issues outside of court very often. Take your time before mediation and become educated with divorce and the different ways in which it can be accomplished. Gather yourself, have a clear head, visit a trusted counsellor and collect the information you will need for making choices during mediation. Slow and steady wins the race.
Your divorce does not have to be a train wreck. Keep these common mistakes in mind and you will be more likely to have a smooth divorce mediation experience. To learn more, visit our mediation page and contact a Jones Divorce Mediation representative.
Reprint from www.lawyersweekly.ca
Family law practitioners in Toronto have long embraced the mediation/arbitration process as a preferred
method of resolving family law disputes. Med/Arb provides a timely resolution to difficult disputes before a knowledgeable third party. With the increasing delays in our court system, and the ever-present uncertainty of result, it may well be time for civil practitioners in all areas to seriously consider Med/Arb as an alternative for their clients.
In a mediation/arbitration agreement, the parties agree to use a third party neutral as a mediator, and
if the mediation is not successful, to employ that same third party as an arbitrator to finally resolve
the dispute within a defined arbitration process.
A Med/Arb agreement will usually provide that the arbitration phase is to commence within a specified
time after the failure of the mediation (typically 30 or 60 days). This focuses the minds of the
participants in the mediation and provides a quick determination of the outstanding issues in the
event that mediation is unsuccessful.
Critics of the Med/Arb process are concerned that during the mediation phase, the mediator/arbitrator
will hear positions and interests that might influence their ultimate decision.
The mediator/arbitrator will accordingly need to make it clear to the parties that his or her decision,
if one is required, will be based solely on the evidence presented within the arbitration phase.
Selecting a respected professional and providing a break between the mediation and arbitration
phases permits the parties to have confidence this will occur.
Judges within our legal system are frequently called upon to make rulings on evidentiary issues
within a trial and then to make decisions independent of the evidence which they may have ruled
inadmissible during a voir dire. We have confidence that judges can perform this task, and mediator/arbitrators
can do this as well.
Barry Fisher, a past chair of the ADR section of the Ontario Bar Association, says heâ€™s surprised the
Med/Arb process is not more widely used by civil litigators. He notes: â€œThe primary reason civil
litigators do not use Med/Arb is that they are not familiar with it. Once they became familiar with
age 2 mediation, they began to embrace it. The same will happen with Med/Arb, for the basic reason that
A study performed by a group at the New York State University at Buffalo supports the conclusion
that Med/Arb is an effective and useful method to resolve disputes. Thirty-six disputes were studied,
including twelve using mediation only, twelve with a Med/Arb agreement providing for the
same neutral to conduct both phases, and twelve with a Med/Arb agreement providing for different
professionals in each phase.
The study found that the disputantsâ€™ motivation to settle their dispute at mediation was significantly
higher in the Med/Arb (same) model than it was in either of the other models. Disputants were
found to be more inclined to want to impress and follow the mediator within Med/Arb (same) and
were more inclined to make a new proposal or to make a concession than in standard mediation, or
where the arbitrator was to be a different person.
Interestingly, parties were also better behaved. Hostile or contentious behaviour was significantly
lower in the Med/Arb (same) model as parties concentrated on resolving their dispute.
Most importantly, there were a higher number of agreements achieved within the Med/Arb (same)
model than either of the others.
Estate litigation disputes could be the next logical step with respect to the expansion of Med/Arb.
Parties in an estate dispute have relationships and interests that go back decades. The disputes are
particularly painful, and years of litigation can permanently scar.
Within a Med/Arb process, a trained mediator/arbitrator can use the understanding they gain with
respect to the relationships between the parties to assist in crafting a solution during the mediation
phase. This knowledge should as well inform a decision which is respected and accepted by the parties
following the arbitration phase.
â€œIn appropriate circumstances, I am a firm proponent of mediation/arbitration in estate disputes,â€
says Howard Black, an experienced estate dispute mediator. â€œIt brings finality to the proceedings in
a cost-effective way and there is the possibility that the third party neutral may well have more experience in the subject matter of the dispute than if the matter proceeded to a judicial hearing, depending upon the jurisdiction.â€
Mediators conducting a Med/Arb process will need to be conscious of how they present to the parties
during the mediation phase to ensure that they maintain the confidence of the parties that they
have not predetermined the dispute.
Mediators will find, however, that the fact that the end date of arbitration is coming up 30 days or
60 days after the mediation focuses the minds of the parties and permits real and lasting settlements
Richard Worsfold is a mediator and civil litigator who practises as a partner at Basman Smith. JennyÂ Bogod, student at law, assisted in preparing this article from Lawyers Weekly.