What Is Mediation for Family Law?
Mediation for Family Law is when the two parties agree to meet to discuss and resolve their issues using a neutral and unbiased mediator to facilitate their negotiations. It is advisable that the mediator retained has attained the Accredited Family Mediator designation.
People who use mediation realize that their ability to discuss and resolve the issues directly with the other person has been affected by the emotions evoked from the breakdown of their relationship or situation.
The mediation process reduces conflict, fosters creative and mutually beneficial solutions and allows the parties to move forward in their new lives.
When Is Mediation Appropriate?
Mediation is strongly recommended when both parties are prepared to enter into negotiations in good faith to resolve the issues arising out of the dissolution of their relationship. Both must be prepared to provide complete financial disclosure and be forthcoming with other information, at least to the mediator.
Mediation is especially beneficial whenever children are involved. The goal is to minimize conflict so that the best parenting arrangements can be made for the children. The relationship between the parents, although changed, can then continue in a civil and respectful manner for the sake of the children. Reducing the conflict in the lives of the children is one of the greatest ways a parent can show their love for their children.
Mediation works very well when there are many issues to be resolved. However, it can be used when there is only one issue in question.
What Are The Benefits Of Mediation?
A successful mediation will ultimately help both sides in a dispute to resolve their issues with minimal conflict and maximum respect at a more reasonable cost than court proceedings.
Even in high conflict situations, a skilled mediator can structure the mediation process so that both parties feel that they are able to have their needs and interests addressed by the agreement.
Solutions that come out of mediation are ultimately those of the parties and are not imposed by the mediator. Mediation is especially beneficial when the parties must continue to deal with each other in their role as parents.
The agreements arrived at are more likely to be honoured when entered into voluntarily.
The skills learned during mediation can also help the parties long after the mediation has been completed.
How are the terms agreed upon at a mediation session documented?
Mediation may assist in moving both parties towards a Separation Agreement by getting them to come to agreement on some or all of the issues arising from their separation. Following each mediation session, the mediator will prepare and send progress notes to each party which will include any agreements made by the parties during that session and set out the follow up items for both spouses/partners to complete before they return to the next mediation session or that are required to complete the Separation Agreement. The points of agreement reached at the mediation sessions on any one or more issues can be turned into a Separation Agreement or partial Separation Agreement, as desired.
When the parties are do not have their lawyers at the mediation, the progress notes/Memorandum of Understanding prepared by the mediator can be taken to the parties’ respective lawyers so that a Separation Agreement can be drafted based on the terms agreed to at the mediation. The final Separation Agreement is then signed on the legal advice of the parties’ respective lawyers.
When the parties attend mediation with their lawyers, the Memorandum of Understanding is prepared and taken away unsigned. Unless the Memorandum of Understanding is signed and duly witnessed as required under the Family Law Act, the Memorandum of Understanding is not a binding agreement.
The Separation Agreement which follows, will contain the terms of the Memorandum of Understanding and any required additional wording to give effect to the agreement and nuances that the parties intend and agreed to at the mediation. This gives the parties time to reflect on and confirm their position without the hurry or pressure they may feel at the end of a mediation session to finalize a binding agreement. However, if the spouses feel that the other party may renege on the terms agreed to before a formal Separation Agreement is finalized, they may agree to duly sign the Memorandum of Understanding at the end of the mediation session. The signed/binding Memorandum of Understanding at the mediation session should only be expected if the parties’ lawyers are present and enough time remains at the mediation session to draft, review and duly sign the Memorandum of Understanding. This requires that the parties be prepared to sign the general terms of the agreement without further details and wording to flush out the general terms. If there are any further details to be included or confirmed, the parties may not want to sign the Memorandum of Understanding at the mediation session.
What is a Memorandum of Understanding?
“A memorandum of understanding (MOU) is an agreement between two parties that is not legally binding, but which outlines the responsibilities of each of the parties to the agreement. An MOU is often the first step toward creating a legally binding contract.”
What is a Separation Agreement?
A Separation Agreement is a domestic contract as defined under the Family Law Act which separating spouses can enter into to document their agreement on custody, access, support, and division and equalization of property. An enforceable Separation Agreement requires several important things to have happened:
- Financial Disclosure must be exchanged between the parties. This is necessary so that the spouses can understand the family’s financial situation, including income, assets and debts and so that their lawyers can give them a meaningful legal opinion on what their legal obligations and entitlements are.
- Legal Advice based on financial disclosure ensures that each party understands the terms of the Separation Agreement and the legal consequences to them of those terms.
- Compliance with the formalities of the Family Law Act for signature of the parties.
What is the difference between a Memorandum of Understanding and a Separation Agreement?
“While a Memorandum of Understanding is a kind of agreement, there are actually several differences between a Memorandum of Understanding and an agreement. An MOU is more of a promise, whereas an agreement is more of a no-frills commitment."
The below table outlines the clear differences between the two:
Bortolussi Family Law is located in Vaughan, Ontario and serves the Greater Toronto Area including Woodbridge, Concord, Maple, Kleinburg, Thornhill, Vaughan, Markham, Richmond Hill, Brampton, Bolton, Nobleton, Newmarket, Oxford, Orangeville, Aurora, North York, Etobicoke, Caledon, Whitchurch-Stouffville, King City, Schomberg, Mississauga, Oakville, Streetsville and Toronto.