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What is mediation?
Divorce Mediation is a confidential process, guided by a neutral third party, who assists separating couples work through the terms of their separation. A mediator listens to both parties and can provide options or suggestions that may assist in the negotiations.
Although trained in family law, mediators have no authority to make decisions, or provide legal or financial advice. The mediator acts as a facilitator to assist the parties in making decisions on matters such as finances, division of property and the parenting of their children.
Mediation is confidential and only involves the mediator and the two parties (unless the parties agree otherwise). The Mediator will not disclose any information to third parties except as required by law. Any records or notes taken by the mediator cannot be used in any future court proceeding, and all records of the mediation are usually destroyed for this reason.
Mediation is a faster, less expensive and less stressful option for parties working through the terms of their separation. They have control over the outcome of their separation instead of a third-party, a judge, making decisions that might not work for them or their family.
Mediation is the great alternative to the adversarial, legal process and allows the parties to work together in a more amicable fashion, to create a mutually acceptable Agreement.
Is mediation right for everyone?
Mediation may be the right option for you:
- If your spouse agrees to work together in mediation.
- If you want to decide on the terms of your separation quickly so you can get on with your life.
- If you want to save on unnecessary legal fees and court costs.
- If you want to maintain an amicable relationship with your spouse moving forward.
- If you want the terms of your separation to remain private and confidential.
- If you want to minimize the amount of stress for you and your family.
- If you want to come to mutually agreeable solutions with your spouse on important issues.
- If you can sit in the same room and talk civilly about the terms of your separation.
- If you can be transparent and provide all your financial documents to the mediator and each other.
- If you want to stay out of the adversarial and overwhelming court process.
- If you want your separation to have minimum impact on your children.
- If you can decide on custody terms.
Mediation may not be the right option for you:
- If there has been a history of domestic violence in your relationship.
- If you are not able to advocate for yourself.
- If you believe your spouse is hiding assets.
- If you or your spouse are incapacitated.
What should I expect from the mediation process?
At Positive Solutions, mediation will usually involve the following steps:
a. A couple will book a 30-minute, free, joint, on-line Introductory Meeting. During that meeting, we will:
i. Explain our mediation process
ii. Discuss costs associated with the package that is right for you
iii. Answer questions about mediation and the process
iv. Provide you with information you need to get you started
b. After the Introductory Meeting each party will book a 90-minute individual meeting with their assigned mediator. This confidential meeting will be used to:
i. Screen for appropriateness of mediation
ii. Create your customized financial checklist
iii. Go into detail about your circumstances and what you want to achieve from mediation. This will help the mediator to understand your situation, the issues and give some ideas about ways to achieve a mutually acceptable outcome.
iv. Schedule Joint Mediation Sessions
c. The parties will provide financial and income statements to the mediator and to each other. Providing these documents is an essential part of the mediation process as it allows the parties to make decisions based on factual information.
d. Once the financial and income statements have been received by the mediator, the mediator will meet the parties together for 2 hours (per each session). The mediator will work with both parties to come to an agreement outlining the terms of their separation.
e. During mediation, the mediator:
i. Will give each party a chance to speak and be understood;
ii. Will provide information with respect to family law;
iii. Will help the parties discuss any issues that may arise;
iv. May give the parties time to talk to their lawyers or support people.
If the parties come to an Agreement the mediator will draft a Separation Agreement which details the terms of the separation.
What is a Separation Agreement?
A Separation Agreement is a legally binding Agreement between a married or common-law couple. A Separation Agreement outlines the terms of the separation and can explain each person’s rights and obligations after they separate, and addresses such issues such as:
- How you will divide your property, including assets and liabilities;
- How you will parent your children after you separate;
- If there is to be any child/spousal support paid;
- Who will be covered under medical and dental benefits; and
- Who will be covered under each parties life insurance policies.
NOTE: A Separation Agreement does NOT mean you are divorced
What happens if we come to an agreement on all terms of our separation?
If the parties come to an agreement on all terms of their separation, the mediator will draft a Separation Agreement to be reviewed by the clients.
NOTE: It is highly recommended that parties seek independent legal advice prior to signing any legal documents.
What happens if we do not come to an agreement?
If you come to an Agreement on some issues but not all in mediation you may have to take your outstanding matters to Family Court and have a judge decide for you.
Is mediation fair?
Mediation is about discussing options, compromise, and give and take. Mediation should result in an Agreement that has been reached by both parties through negotiation. The Mediator will guide you through the process but will not make decisions for you, therefore the parties are the ones that create their own Agreements.
What if my ex won't mediate?
It can be really challenging if your ex is not interested in mediation to address the issues of your separation. However, mediation is a voluntary process and unless both parties agree, mediation session cannot proceed.
Talk to your spouse about mediation and be prepared to answer objections.
What is the difference between a separation and a divorce?
Spouses will be considered “Separated” under the Ontario Family Law Act when they live separate and apart and there is no reasonable prospect that they will resume cohabitation. However, for financial or other reasons, couples may remain living in the same home and still be considered separated.
A divorce is a recognition from the Government that you are no longer married and allows ex-spouses to remarry.
Typically, you have to wait for one year from the date of your separation to apply for a divorce.
Is a Separation Agreement enforceable if it is not signed by a lawyer?
Under the Family Law Act, there is no legal requirement for a Separation Agreement to be signed by a lawyer. The requirements under the Act state that a Separation Agreement must be:
1) In Writing;
2) Signed by the Parties; and
The purpose of a witness is to confirm that the parties actually signed the Agreement. A witness can be any competent adult over the age of 18.
In most cases courts will uphold a Separation Agreement however, courts will likely notuphold an Agreement in the following situations:
1) the terms of the agreement are not in the best interest of your children;
2) the parties have not fully disclosed certain assets or liabilities;
3) the Separation Agreement is clearly unfair; or
4) there has been pressure from one party, for the other party to sign the Agreement.
It is strongly recommended you seek independent legal advice prior to signing any documents.
Lawyers, Court, Support Payments and More
Do I need a lawyer for my mediation?
You do not need a lawyer to attend mediation. In fact, the advantage of mediation is to save on unnecessary legal and court fees. However, it is important for each client, at the very least, to obtain Independent Legal Advice prior to signing an Agreement. Mediators do not provide legal advice and do not replace the knowledge and expertise of a lawyer. In certain situations, the mediator may refuse to continue mediation until the clients speak to their legal counsel.
Will the mediators notes be admissible in court?
All communication in mediation is confidential. In most jurisdictions there are rules that prohibit either party from calling the mediator as a witness at trial or even using any of the negotiation dialogue as evidence at the trial. The purpose of confidentiality in divorce mediation is to allow the parties to freely discuss negotiation possibilities. Neither spouse will need to worry about whether they are harming their case in court if mediation fails to result in a settlement.
Do I have to go to court?
If you and your spouse can agree to all terms of your separation, you will not have to go to court. However, if you and your spouse do not agree on an issue, you may have to go to court to have the judge make the decision for you. For example, if you can agree on all of your parenting issues but you cannot agree on what will happen to the house, you will have to go to court to have a judge decide what will happen to the house.
How long does the process take?
The length of the process differs for each couple. On average, the mediation process takes about 2-3 months. This includes meeting time plus additional time to complete the appropriate documentation. If you come prepared to each meeting and are committed to the mediation process, the length of time could be less.
I am confused by some of the custody terms I hear. Can you help clarify these terms?
When decisions are made on issues pertaining to your children regarding religion, education, non-urgent medical issues and special or extraordinary activities:
- Joint Custody – Decisions are made together;
- Sole Custody – Decisions are made by one parent.The terms that refer to the residency of the children are:
- Shared Custody – Children live with both parents at least 40 percent of the time;
- Primary custody – Children live with one parent more than 60 percent of the time;
- Split Custody – One (or more) child lives primarily with one parent; one (or more) lives primarily with the other parent.
These terms can be used in combination, for example: “joint, shared custody”.
How is child support calculated?
Parents have a legal responsibility to support their children financially. The federal government created the Child Support Guidelines to help parents determine what a fair amount of child support should be. The calculation takes into consideration the residential arrangements of the children, the number of children and the annual income of the parents. Child support is the right of every child and cannot be waived by the recipient parent.
Will I have to pay spousal support?
There are several factors to consider when determining spousal support such as:
- the age of the recipient at date of separation;
- the number of years the parties have been married;
- the role of each spouse during the marriage;
- if there is to be child support payments paid/received;
- educational background of the recipient; and
- the employ-ability of the recipient.
The parties are encouraged to create a budget to determine their own specific financial needs to help prepare for this discussion.
Getting started with Positive Solutions:
How soon can I begin the process?
You can book a free, 30-minute, joint, on-line Introductory Meeting today. Call us or book an appointment on our website.
Are you open on weeknights or weekends?
Depending on your location, some evening appointments are available. Please call to inquire at 1-888-779-8777.
Currently we do not book appts on the weekend.
Why should I choose Positive Solutions Divorce Services?
- You and your spouse have an opportunity to create your own Separation Agreement with the assistance of a mediator;
- We provide our clients with comprehensive legal Separation Agreements. This makes us unique, most other family mediators in Ontario will only provide couples with a Memorandum of Understanding. This document (the MOU) must then be taken to a lawyer who will use it to create a Separation Agreement.
- All of our mediators are Accredited through the Ontario Association of Family Mediation, the governing body of Family Mediation in Ontario;
- We have 33 office locations in most major cities across Ontario and on-line mediation for those who are not able to access our offices;
- We have a live person available during business hours, to take your call;
In addition to mediation, we have carefully selected professional resources for all your separation needs; and
- We have customized packages specific to your situation. You will know your costs upfront.
Information on this website may contain legal information but is not to be interpreted as legal advice. It is strongly recommended that you obtain Independent Legal Advice (ILA) before signing any documentation arising out of the end of your marriage or common law relationship.
Copyright 2017. Positive Solutions Divorce Services