Mediation

Mediation is an alternative process which is slowly gaining in popularity as a means for resolving disputes that arise on a marriage breakdown. It is in effect a sort of supervised negotiation in which the parties to the dispute, with the assistance of an impartial person (the Mediator), work out an agreement that suits them, as opposed to having a decision imposed upon them by a judge. It has the advantage that the parties control the manner in which they resolve their dispute and the cost and timing of resolving the dispute as well. Mediation, when successful, can be a very cost-effective way to resolve a dispute.

Both parties must first agree to engage in mediation; mediation will generally not be an appropriate mechanism if one of the parties is reluctant or unwilling to engage in negotiation. Mediation will be much more effective and likely to be successful if each party sincerely wishes to resolve the dispute and is prepared to make some sacrifice or concession in order to reach an agreement.

After agreeing to enter into mediation the parties will select a mediator. The mediator acts as a referee to help the parties structure the form of the negotiation and to ensure that the negotiations between the parties continue in a productive manner. A lawyer can act as a mediator, and can inform the parties of the legal issues involved in their case and advise them of the probable outcome of litigation. A lawyer mediator can also prepare a final agreement between the parties on the conclusion of the mediation.

Because mediation is considered part of a settlement process, all communications between the parties and the mediator are "without prejudice", meaning that nothing that is said or proposed can later be introduced in court by one or other of the parties, should the effort to reach an agreement through mediation be unsuccessful. At any stage of the mediation, each party is free to seek and obtain independent legal advice with regard to the matters under discussion.

Most mediations can be resolved in two to five sessions (usually about one hour each), with the lawyer-mediator then preparing a written agreement setting out the agreed-upon terms. Each party is encouraged to obtain independent legal advice before signing the agreement, but it is not necessary. The costs of mediation are usually shared between the parties.

Fred C. Lowther is a trained mediator and is available to assist in the mediation of family law disputes.

Note: The information provided above is general information only and is provided as a public service. For detailed information and advice with respect to your specific circumstances, please contact our office for an appointment.