The Mediation Process:
Pre-Mediation Screening Meetings
By regulations under the Family Law Act, separate pre-mediation meetings must be held with each party, prior to involving both parties together in mediation sessions. At that pre-mediation meeting with a participant, the mediator must undertake a screening process to detect power imbalance and any domestic abuse, and assess whether mediation is appropriate. The mediator must emphasize the importance of each party obtaining independent legal advice, and discuss organizational matters such as identification of issues, financial disclosure and exchange of relevant documents, scheduling, and review and signing of an agreement to mediate.
Following the completion of the separate pre-screening meeting for each spouse, the mediator helps the parties identify the issues in dispute and makes the parties generally aware of the applicable law relative to the spouses’ situation without specifically advising whether that law would help or hinder a particular spouse to maintain the mediators neutrality. An exploration is made as to what the parties are already in agreement on, followed by the identification of issues in dispute. Items of disclosure and documentation showing financial positions are then identified for information exchange between the parties, relative to those issues in dispute. Ways to resolve the dispute and potential compromises and accommodations are then identified as well as the effect of any proposed settlement on any involved third parties, primarily any children of the relationship, but possibly including such possible third parties as creditors or in-laws.
Finalization of Mediation
When all substantial issues have been settled, the mediator prepares a brief memorandum of understanding outlining the settlement in point form. Once this memorandum is approved by the parties, a final draft separation agreement is prepared by the mediator in a form which may be filed with the Court for enforcement of maintenance and matters involving children.
Financial disclosure is finalized by each party completing, for attachment to the agreement, a sworn financial disclosure statement in prescribed form according to Supreme Court rules.This enables the court to set aside a settlement agreement in whole or in part if the court concludes that the signatory of the separation agreement was deceptive or non-disclosive in a material way.
Each spouse is then sent to a lawyer of his or her own choice for independent legal advice before the separation agreement is signed, with such a meeting usually lasting approximately one hour. The mediator may be contacted by a spouse’s lawyer to amend or clarify part of the draft separation agreement if necessary. The mediator, being neutral, will fully inform the other spouse of the requested changes to obtain an informed mutual consent to any proposed alterations.
The process is complete when both parties have signed the separation agreement with each party’s lawyer certifying, in an attachment, that independent legal advice was given. The separation agreement and attachments are then filed in court if a party so desires.