There have been many articles written about the benefits of resolving disputes through mediation rather than litigation.  Despite this, there is still a great deal of confusion about what a mediation looks like and whether it will assist parties to resolve their dispute.  In family law disputes, there is often also mistrust between parties that makes them skeptical about attending mediation.

To start with, many people are not aware that mediations can be held at any time.  You do not have to be involved in court proceedings to attend mediation.  Separated spouses are not always ready to participate in mediation right after separation.  When a relationship breaks down, the spouses often go through a grieving process, grieving the loss of the life that they had envisioned and the loss of a relationship that they once believed in and treasured.  It is rare that both spouses will be at the same stage of the grieving process, and depending on where a spouse is in this process, mediation may not be appropriate right away.  For example, if one spouse is not ready to give up on the relationship, they are not going to be very amendable to resolving matters to finalize the end of the relationship.

When both spouses are ready to participate in mediation, mediation can be an effective way to resolve family disputes.  Mediations allow each spouse the opportunity to participate in the structure of their resolution in ways that other methods do not.  Often resolutions reached at mediations can be creative and tailored for individual families.  This is because you are involved in making the decisions about your family, rather than the traditional litigation route, which often involves a Judge making these decisions.

A typical family mediation will start with private screening interviews between the mediator and each spouse individually.  A family law mediator needs to ensure that the matter is appropriate for mediation and identify whether there are any power imbalances or family violence issues that will require additional attention by the mediator, or, that may make mediation inappropriate.  This initial interview also allows the mediator to gain a sense of what has brought the spouses to mediation and what the areas of agreement and disagreement are.

The actual mediation will usually start with an opening statement from the mediator.  The mediator will confirm the ground rules and explain the process of mediation.  The mediator will remind the spouses that the mediator is a neutral party.  The mediator will usually then invite both of the spouses and/or their lawyers to give an opening statement.  This allows each spouse to present their view on the issues that brought them to mediation.

Following opening statements, the mediator then works with the parties to develop a list of topics that will be discussed during mediation.  If there are any immediate areas of agreement, these will be identified and dealt with so that the parties can move onto the more difficult issues.  What happens next is usually dependent on the mediator and the spouses themselves.  The mediator will work with the spouses to facilitate a conversation between the spouses that allows the spouses to come up with ideas and solutions to resolve their dispute.  It is important to remember that the mediator is not an adjudicator and cannot impose a solution.  It is the spouses themselves that come up with the resolution.

Mediation is effective because it facilitates a conversation between the spouses.  It is common for spouses to stop speaking to each other on substantive issues after separation.  Mediation is often the first time they have actually communicated with their former spouse.  When spouses are communicating, they are sharing ideas and concerns about what is going to happen to the house, the family business, and the children.  Through this process, they can often more easily recognize a solution that is going to work for everyone.

The appropriateness of mediation to resolve your dispute can be evaluated by a family law dispute resolution professional.  This can be your family law lawyer, a family justice counsellor, or a certified family law mediator.  It is important to remember that the above process can occur in a typical mediation; however, each mediation is unique and may not follow the above process exactly.  In addition, mediators have to be flexible and adapt to changing situations so they may alter the process to suit the needs of individual families.

In addition, mediation, even when the mediation is conducted by a certified family law lawyer mediator, is not a substitute for legal advice.  It is imperative that spouses obtain independent legal advice regarding their rights and obligations, as well as receive advice from other advisors that may need to be involved, such as financial planners and accountants.

The information provided above is for educational purposes only. This information is not intended to replace the advice of a lawyer or address specific situations. Your personal situation should be discussed with a lawyer. If you have any questions or concerns, contact a legal professional.

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