Mediation and Marriage Separation

May 13th, 2015 by John Schuman

Toronto area family law lawyer John P. Schuman recently addressed the following question: “How does mediation work in regards to marriage separation? Do I need a lawyer for mediation? If not, should I see a lawyer first? Is it better to settle the separation through lawyers?”

Mediation is an excellent option for many separating couples to work out the issues between them in separation and divorce. The goal is always to get to a separation agreement that addresses all the issues, or a court order.  But, the court order route is much more difficult – emotionally and financially – and expensive.  Mediation may not work well where there has been domestic violence, substance abuse, mental illness, a strong desire to destroy the other spouse, or a serious power imbalance.

Even when you are proceeding with mediation, which is an excellent choice for most people, you should see a lawyer first and have a lawyer’s assistance throughout the process.  Here is an article that explains why.  But to summarize here are the three main reasons:

1) How much do you know about the specifics of family and how they apply to your situation?  Not much?  (Don’t rely on rumours you have heard, they are often wrong.)  If you think you do not a lot, immediately download e-book on Ontario Family Law for Kindle, iPad/iPhone or Koboand find out.   Most people do not know much and make many common mistakes.  You need to go into mediation knowing how the law applies to you and what is your best outcome and worst outcome if you went to court instead you know your “settlement range.”  When you or your spouse see a lawyer after mediation (see the next point) you don’t want to find out then that you have a “bad deal” that you should throw out and start from scratch.  Making informed decisions through mediation leads to better and more lasting results.

2) Section 56(4) of Ontario’s Family Law Act says that the Family Courts can ignore or completely discard a separation agreement if either party does not “understand it.”  And the Family Courts have also said that almost everyone needs to see a lawyer to fully understand a legal contract – especially complicated ones. So, whenever judges look at separation agreements, including ones for people who went to mediation, they always look first to see whether the parties each had independent legal advice.

3) When you are hiring a mediator, you are hiring that person to get you and your spouse to settlement – not to give you legal advice or to get the best settlement for you.  Some people are unreasonable and they will only settle if they “get everything”.  In that case, the mediator may only be able to get you to that settlement, and it might not be the right one for you.  At the same time, mediators are not permitted to give the parties legal advice.  There may be a big difference between what you should get under the law and the possible settlements at mediation.  You need the advice of a lawyer to know.

Finally, you can attend mediations with a lawyer.  Some mediators even require it because they want each spouse to know what they are doing and there is no need for the parties to “think about” any proposed settlement with their lawyer.  That may get the agreement finalized at the mediation.

In addition, most lawyers do not like to waste time (and your money) at mediation. So they get everything that the mediator and the parties need to settle the case together before the mediation – such as financial disclosure.  Then you may get the mediation completed in one or two sessions and you will not have mediation sessions discussing “what has to be done next.”

Some people go to mediation without a lawyer to save money.  That is possible too – but speaking to a lawyer first is a good idea for the reasons set out above.  You may also want to speak to your lawyer by phone during the mediation. If you reach a settlement, and your lawyer is not there, you will need to go back and speak to your lawyer to get independent legal advice and to draft up the separation agreement. (Mediators are not allowed to draft separation agreements either.)

And if you are thinking about mediation as way to resolve matters without conflict, you may also want to look into Collaborative Practice, which is another process that many people like to use after divorce.

To find out more about your process options in separation and divorce, and to learn a lot about the basics of Ontario Family Law, you can download the excellent e-book referenced above, or get it as a paperback.

You are off to the right start by asking about your options in separation and divorce. (Check out this podcast for more about your options.)  Assuming you have to go to court, or give your spouse everything, often gets people going down the wrong path.  But, making the right first decisions will make your easier now and in the long run.


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