Why Choose To Mediate?

Under the relatively new Divorce Act (D.A.), proclaimed in force in March 2021, parties

shall, if appropriate to do so, try to resolve the matters that may be the subject of an

order under the Divorce Act through a family dispute resolution process. Family Dispute

Resolution Process is a process outside of court that is used by the parties to a family

law dispute to attempt to resolve any matters in dispute, including negotiation, mediation

and collaborative law. Moreover, it is the duty of every lawyer to encourage their client

to resolve the matters that may be the subject of an order under the D.A. to go through

a family dispute resolution process, unless it is clearly inappropriate. to do so. A

lawyer must certify that they have fulfilled this duty, before commencing a court

application.

Inappropriate cases involve family violence, defined by the Divorce Act as: violence or

threatening or a pattern of coercive control to cause fear for one’s own safety or in the

case of a child, direct or indirect exposure to such conduct. It can include physical

abuse; sexual abuse; threats to kill; harassment including stalking; failure to provide

necessities of life; psychological abuse; financial abuse; threat to kill or harm an animal

or damage property and the killing or harming of an animal or damaging property.

These types of cases will be screened out by the mediator at the intake stage.

The Silo Divorce is an attitude where individuals have shut down direct communication.

Such a situation results each party being guarded, insecure and distrustful of the other

party. When working independently towards “untying the knot”, the result is often

inefficiency and increased costs to both parties. How much time and money is wasted

on having one lawyer send aggressive, threatening, legal letters, with ultimatums to the

other lawyer with that lawyer then responding in kind?

You may say that, in your particular case, it would be impossible to mediate the issues

of your divorce with your ex-spouse. But, you both are capable of changing your

mindset if you both can agree to work towards a common goal. The common goal in

most cases should be to save legal costs; to ensure your children’s well-being; and to

obtain a fair and equitable monetary settlement. Your anger, hurt, bitterness cannot be

compensated for by a court.

A mediator is not a therapist but a mediator can help you harness your emotions and

get you back on track to achieving your mutual goals. A mediator doesn’t conduct an

investigation nor does a mediator give legal advice. However, a mediator can provide

legal education. A legally trained mediator can work with both of you to resolve issues

of property division, child and spousal support, parenting time and decision making. It is

much better to discuss these issues between yourselves in a respectful manner than to

have a judge, who knows very little about you and your family make life altering

decisions for you.

If disputed issues are resolved then the mediator will provide you with a mediated report

(Memorandum of Understanding). A Mediated report is not signed by the parties and is

not legally binding so it is important to also receive independent legal advice on the

mediated agreement. However, to further save cost and money, the mediated report

can be turned into a separation agreement by a “legally trained” mediator, unsigned, for

the purpose of you taking that Report with the incorporated terms of a separation to a

lawyer to have it reviewed to ensure your rights are protected. Upon receiving

Independent Legal Advice, you will then sign the Separation Agreement which then

becomes legally binding.