The Family Mediation Process

Family mediation is a way for couples to settle issues arising from a break-up without having to have a dispute in court. A neutral mediator helps the couple reach a fair agreement on the issues submitted to the mediator.

This article deals with mediation by a “certified mediator.”

Mediation is...

      a way to help couples agree on these issues:

• the custody of their children
• child support
• support payments to one of the spouses
• division of their property
• any other disagreement concerning their marriage

 It is usually a voluntary process: either spouse can refuse to participate in mediation or end the mediation sessions at any time without giving a reason.

Mediation is not...

• psychological help for the spouses
• couples therapy
• a way to save the marriage

Also, mediation is not for everyone. For example, experts don’t recommend family mediation if either spouse is in one of these situations:

• a victim of family violence
• has a mental illness

Mediator’s Role

The mediator helps the spouses reach a fair agreement on the subjects discussed during mediation.

To do this, the mediator has these responsibilities:

• make sure both spouses have a chance to explain their needs and wishes
• make sure everyone is respectful and both spouses are treated equally during the mediation sessions
• help the spouses put their children’s needs first

The mediator cannot do these things:

• make decisions for the spouses (because mediators are not judges)
• represent one of the spouses
• take one spouse’s side
• give legal opinions

The mediator can do these things:

• end the mediation at any time if the session is not going well
• suggest that the spouses meet with a legal professional if they need a legal opinion on one of the topics discussed
• give general legal information

Preparing for Mediation

To prepare for mediation, the spouses can

• meet with a lawyer to learn about their rights and obligations,
• gather all documents that might be useful to them or to the mediator, such as tax returns, and  
• write down what they disagree on and why.

The Three Steps in the Mediation Process

The spouses are not allowed to have a lawyer with them during the mediation sessions. However, they can meet with a lawyer or notary before, during or after the mediation process to get legal advice.

Mediation usually involves three steps:

1. Evaluation
   
   During the evaluation step, the mediator does the following:
   • explains the mediation process and its role to the spouses
   • evaluates the situation of the spouses and their children
   • helps to decide which topics should be discussed
   • plans the next mediation sessions
   • asks the spouses to sign a mediation contract, which outlines the rules for the mediation
2. Negociation
   
   In the sessions that follow, the mediator tries to help the spouses agree on the specific points raised.
   Anything said or written down during mediation is confidential and can’t be repeated or filed in court if mediation doesn’t work.

3. Preparation of a Report on Points of Agreement
   After the sessions are over, the mediator writes a report on all the points the spouses agree on in.

The Report

• is usually a list of points on which the spouses agree
• is not very detailed or specific
• does not oblige the spouses to follow it because it’s not a contract or a court decision

The spouses should not sign the report. If they do, it could be considered a contract that they are forced to follow. It is not a good idea to sign the report because it is not written in a way that protects them or prevents misunderstandings.  

This is why the mediator recommends that the spouses consult a lawyer to convert the report into an agreement, which will later be filed in court and eventually become a decision of the court.