What to expect in your family law mediation

April 30, 2019

Article written by: Family Lawyer Marcus Sixta 

Mediation is a great way to proceed in a family law case. We always canvass the possibility of mediation before going to court because mediation usually results in less acrimony after separation, it typically costs less than litigating a family law matter and because the mediation process is faster than court. There is also research that suggests that the results of mediation are stronger and longer lasting because each of the parties takes ownership over the result.

Before going to mediation in your family law file there are some things that you should know to be prepared for the process. First of all, you should recognize that a mediator is not an arbitrator.  The mediator is not there to decide the outcome of your dispute with your spouse.  The mediator will help you and your spouse negotiate your own settlement.  The family law mediator is in charge of the process.  You and your spouse will be in charge of the outcome.

The mediation process usually starts with the mediator giving an overview of what will happen and will provide you with a copy of a mediation agreement to sign.  You will have seen a copy of the mediation agreement already as the mediator would have provided a copy to your Calgary family lawyer.  Most mediators will briefly review the agreement with both clients present in the room.

Once the mediation agreement is signed, your family law mediator will ask you a few general questions regarding your circumstances. You should not assume that the mediator knows anything about your circumstances.  Normally your family lawyer will not have had an in-depth conversation with the mediator regarding any of the issues in dispute.  The general questions the mediator asks at the beginning of the process will help everyone get an idea of what issues have to be resolved.

Normally the mediator then will start to make an agenda.  You will be asked to raise issues that are of concern to you and matters that you feel must be resolved. In a family law case issues typically include the following: 

1. 1. a parenting schedule;
   2. decision making with respect to the children;
   3. child support;
   4. spousal support;
   5. possession of the matrimonial home;
   6. distribution of the matrimonial property;
   7. costs.

The mediator will then take on one issue at a time and attempt to have a discussion and reach an agreement before setting that issue aside and moving to the next issue. Quite often the issues and subsequent discussion are written down on a white board or flip chart. 

Next, the mediator in your family law dispute will delve into an exploration of your interests regarding each of the outlined issues.  This involves looking at the deeper hopes, concerns and fears behind each issue. Once each issue has been explored in this way the mediator will shift to brainstorming solutions for each of the issues. Only after all possible solutions are identified will you then get to the problem solving stage in which agreements can be made.

You should be aware that during the initial stages you may feel some degree of frustration.  People typically want to “cut to the chase” and the process never seems to move fast enough.  However, this initial groundwork is important in helping you achieve an overall resolution.  You must be patient and work through it.

Also, be aware that the mediator cannot give you any legal advice.  If you require legal information, the mediator can provide that to you, but if you need advice, you should speak to your family lawyer.

Lastly, do not expect to “win” during mediation.  You should however expect to achieve a resolution that is fair that you can live with.  You can expect a win/win but this will always involve compromise by both parties and fairness.

Lastly, here are some ground rules to remember for your mediation:

1. 1. Do not interrupt when your spouse is speaking. You will have an equal opportunity to speak on every issue presented for discussion.
   2. Avoid language that blames or finds fault with your spouse. Use non-inflammatory, non-sarcastic words. Be respectful.
   3. Try to speak for yourself. Use “I” statements rather than “you” did this and that. 
   4. Focus on shared complaints. Raise it as a concern and follow it up with a constructive suggestion as to how it might be resolved. If you can agree on a common issue you can build on this in other areas. 
   5. If something is not working in the process, tell the mediator so your concern can be addressed. You can even ask to speak to the mediator alone.
   6. Listen carefully and try to really understand what your spouse is saying without being judgmental or critical.
   7. Remember that you can just say “no” to anything that is not acceptable to you. If mediation is going badly you can say so. 
   8. If you need a break say so. You can also ask to have a shuttle mediation in which you and your spouse are in separate rooms and the mediator moves between them. 
   9. Empower yourself by taking responsibility for your feelings, your interests and your choices. Be accountable for your actions. 
   10. Be future focused and avoid dwelling on the past. 
   11. Try to be patient. Taking the time to gather all the facts and explore the issues and interests will produce a much more acceptable settlement. Mediation of family law issues is not easy but it can be very effective if you put in the work.  

If you require mediation of your Calgary family law matter, Marcus Sixta is an accredited family law mediator and collaborative divorce professional with experience at every level of court in Alberta. Marcus Sixta is also the founder of Crossroads Law, a family law firm with top rated Calgary family lawyers experienced in representing clients in mediation.  

 

---