Frequently asked questions

One of the biggest misconceptions – up there with having to be amicable for mediation to work –  is that the mediator is the one who makes all of the decisions or pushes decisions in a specific direction, in a family mediation. The entire concept of mediation is that the parties mediate an outcome without the pressure of the lawyers or of each other. The goal is to get a close to a win-win as possible which completely contradicts the goal of lawyer – whereas the goal of a divorce attorney will always be to win and make the other party lose

The mediator is there to make sure that each side better understands not only the needs of one another, but of themselves. They are there to facilitate the conversation and come to the best solution possible. It is ultimately up to the couple to agree to the outcomes that will work best for moving forward.

There is also a myth that most of the decisions and issues have to be solved before mediation can begin.  This is simply not the case and in fact would make mediation pointless. The entire point of family mediation is to solve problems and  reach agreements on everything from parenting arrangement to asset division.

Working with Fairway Divorce Solutions means helping in the negotiations, generating solutions, and finding positive outcomes. Mediation is about working through the conflicts and bringing both parties to a resolution that may not have been possible through traditional litigation.

Perhaps the biggest myth surrounding family mediation is that it is only for “simple” divorces. Divorces that have a lot of assets or even complicated business matters,  should be handled by litigators, right? Wrong.

There are specialists within the mediation field who are trained to work with complicated financial assets. For most people, the financial aspects of divorce are at the top of the list of concerns and often result in the most conflict.

Just because the situation may entail more than a few financial assets, it does not mean that family mediation isn’t right for you. Talk to our team experts to find out what they can do for your financial situation.

It is safe to say that most married couples do not have the same personality. One person may be more dominant, outspoken, analytical, temperamental, controlling etc. In the event of separation or divorce, there is often a concern that one party may out “power” the other therefore resulting in an unfair outcome.

There is an assumption that without an aggressive litigation lawyer, those who don’t necessarily have “strong” voices won’t be heard during the negotiations.

But the truth of the situation is that mediators ensure that both positions are heard and considered in designing the outcome. One spouse will not be allowed to dominate the conversation and mitigate the other.  

The reason why family mediation works in this instance is because both parties must meet with the mediator. From there, both must be accountable to the process.

The process of mediation is favored and preferred throughout the court system. At the end of the mediation process, when all decisions have been made, a legal Separation Agreement is drafted and signed in front of a lawyer. This lawyer will provide Independent Legal Advice so that the person signing completely understands the terms and is comfortable that their rights have been protected. Once signed by both parties in front of two different lawyers, the contract is binding and enforceable.

Not in the least. A mediator is not a therapist and the goal is not to talk through problems. The goal is to find solutions and to generate discussions between two differing parties. In some cases, these parties will meet the mediator separately to encourage independent decision making. Sure, it can be helpful to talk about the reasons or emotions behind these decisions.

At the end of the day, the effort is made to tackle the problems and to find the solutions to those problems. All of which lead to a signed Separation Agreement that is enforceable in the courts.

Think about it this way. Going through traditional means of litigation can take years. It all depends on the level of contention and how much money each part has available to fight. There is also the availability of the courts as delays can take months or even years before going to trial.

But mediation is about finding a solution sooner. The process, even in a more contentious situation, can take months instead. It is without a doubt a much shorter process to go through mediation than traditional litigation.

It is important to note that lawyers can still be involved in the process even when mediation is favored. An attorney would be there to provide independent legal advice.

The intention of independent legal advice isn’t to involve lawyers in the negotiation process. It is to ensure that each party understands the terms of the separation agreement, and are signing it freely and without pressure from the other party.

Having independent legal advice can also make sure that you understand your responsibilities, obligations, and rights. Mediation also gives each side the choice as to how involved lawyers will be during the process.

The reason that people go through mediation is because there are disputes that need resolving. So, having good communication with your ex is definitely not a prerequisite for the mediation process. In fact, most couples getting a divorce, do not have good communication. 

There are also a variety of mediation types to fit your specific needs. Understanding the different forms of mediation can be valuable before starting. The entire process is meant to assist bringing both sides together so that they can come to an agreement.

• Interest Based Mediation
• Collaborative Divorce lawyer Mediation
• Mediation Arbitration (Med/Arb)
• Directive Mediation
• Facilitative Mediation
• Process Oriented Mediation
• Caucus Mediation
• INR  -Independently Negotiated Resolution™

The short answer is that, yes, they should be willing. After all, the whole point of mediation is to bring both parties together so that a resolution can be achieved. 

So, if your spouse isn’t willing to participate in any sort of discussion,  or they refuse to participate in mediation then in most provinces they will be forced to participate before they can move to litigation. This is not the best scenario as they may have their backs up and refuse to participate ultimately resulting in court.  

The best outcome is to provide them enough information that they can read or view so that they see how it is in their best interest, both financial and otherwise to at least give mediation a real chance.

There are a plethora of resources available that can help bring even the most tenuous of relationships together to the negotiation table. These tools are meant to help assist couples that don’t exactly have the easiest time communicating.

Most divorcing couples need help when it comes to negotiating a separation agreement. Some more than others however mediation can work with both amicable and volatile couples.  As long as there is not physical abuse and personality disorders are not a dominating factor. 

Some parties will engage in collaborative divorce mediation when they are truly concerned about extreme aggression. As stated above there are pros and cons with this type of mediation and that is why it has lost its appeal for most. 

The best way for mediation to work with more volatile couples is to ensure you are working with a mediator who has the experience to handle these type of cases. The should be using a combination of mediation types to ensure the safety of each party and well as that neither party is bullied.

Marriage counselors and mediators have distinctly different goals, though they do share one similarity: to use a variety of conflict resolution tools in order to help their clients. The main difference is that the counselor is working to save the relationship, or lay the foundation for a peaceful parting of ways, while the mediator is attempting to find a resolution to the disagreements between the two parties.

The difference is that the family mediator has the sole focus of reaching an agreement on the issues in divorce, between the spouses.

A marriage counselor has the idea of saving the marriage. A family mediator is not there to help preserve the relationship, though they can help to facilitate a healthy relationship in the wake of a divorce. 

Messy divorces tend to be a lot more costly both emotionally and financially. Here are a few tips for those looking to avoid the battle of a messy divorce.

If you are hoping to go through the process of divorce without all the hassle and mess, there are a few ways to do sConsider mediation. If you want to take the surest route to avoiding a messy divorce, then you should be considering mediation before litigation. The latter is particularly costly every step of the way, requiring thousands upon thousands of dollars to see things through to the end. Most importantly, you are crafting your outcome and not a judge who barely knows you or what is in the best interest of your family.

1. Stay out of family courts. This is an extension of avoiding litigation. If you can avoid the court systems as much as possible, it will be more cost-effective and less emotionally draining. Working with a mediator can ensure get you to a better end game. 

2. Be organized. No matter what kind of divorce you are going through, there is going to be a lot revolving around gathering  financials and determining what is what and the values associated with each.  Before you even begin, make sure that you have all of your financial documents gathered and organized to the best of your ability. It will save a lot of time and hassle throughout the process. Also have a short term plan around the co-parenting schedule. A trained mediator will help put that in place.

3. Do your homework. While there is little chance that you will understand all the ins and outs to mediation and divorce, it helps to be prepared. Do your homework and know the process of how mediation and divorce works in your province. It will create a lot fewer surprises, allowing you to make it through the process as smoothly as possible. 

Traditional divorce can feel infinitely more complicated when there is domestic violence involved. If one party is truly at risk, then mediation is not an option and using the courts to ensure the safety of either the children or a parent, is the best route. 

Research does show that mediation works quite well when it comes to volatile divorces, where tempers are high but the risk of physical abuse is low. There is even some proof that it may be better than litigation when handling cases with high conflict.

Mediation has the ability to hold individuals accountable. That is largely due to the face-to-face nature of most mediation meetings. The difference between mediation and litigation in this instance is that individuals are not able to hide behind their lawyers.

If you aren’t quite sure whether you should go with traditional litigation versus mediation, there are a few simple answers. Family mediation is exponentially cheaper with better outcomes than taking matters to court. Not only is it financially more cost-effective, but emotionally so as well.

There is also the matter of family mediation being better for the kids. Kids need both parents to develop a healthy self confidence. Only in the rare instance is having both parents active in parenting not advised. Given the way mediation is designed, it is conducive to designing a co-parenting plan that works for all family members, especially the children.  .

Finally, family mediation is faster. Traditional litigation can take years to complete the process. By going through family mediation, both parties can begin moving on with their lives instead of becoming mired in a seemingly endless battle. Both sides deserve to move on with their lives, not continue the never-ending war.

One of the main points of discussion about mediation is whether or not the family mediator should be a lawyer or not. It comes down to a few schools of thought.

The first is that lawyer mediators have a better understanding of the law. Understanding the law is important however family law in Canada leaves little up to interpretation as the letter of the law is quite straight forward. Certainly in complex situations around spousal support, pre marriage assets, business’s and inheritances, getting legal advice is prudent. However an experienced meditator , regardless of background, should know when to bring in outside professionals. This includes, lawyers, accountants, business valuators who can assist in financial division and discussions.

The effectiveness  of a mediator is much more about their mediation training and experience then their area of expertise ; legal, financial or parenting. Sometimes, a family lawyer coming from a background in litigation, can result in an almost guaranteed Arbitration as that is simply how they are trained. Mediation is a difficult skill set and a really great mediator almost never ends up in Arbitration.  

Lawyers make their money when conflict drags on – this is a simple fact and that is how they are trained. While non lawyer mediators can also drag things on – it is usually due to lack of analytical process or skill vs fee motivation.

What it ultimately comes down to is that personality types and personal skills that make a good family mediator usually result in the opposite in a litigation lawyer. 

The simple fact is that there is no definition for whether or not a mediator should have a legal background. The role of a family mediator is quite specialized and requires a specialized set of skills.

Start by finding a family mediator who practices family mediation on a regular basis. Just as importantly, make sure that they are committed to out of court dispute resolution. 

If anything, ask a few important questions. “Why do you practice family mediation? How many cases do you mediate in a year? Do you still litigate?” How many of your mediations end up in arbitration? These will give you the clearest insight as to whether you have chosen the proper mediator. Appropriate child development or financial backgrounds may be more suitable given the circumstances of your own situation. Ask lots of questions and find the right match before you proceed is the key to success.

There are two ways in which you can encourage your spouse to make their way to the mediation table. The first is to offer to pay their mediation retainer. The second is to send them a mediation letter. Let’s take a closer look at both.

Paying for Your Spouse’s Mediation Retainer

On first blush, it seems like this is crazy. But with both parties already in agreement about splitting up, family mediation can quickly become the preferred option. But what if one party can’t afford to participate?

Convincing a spouse to participate in a process that they don’t want to partake in can be difficult. And with the familiar process of litigation, it can all become far more costly in no time.

It might seem counter-intuitive, but getting both parties into the room to talk is important. So, paying for your spouse’s share of the retainer can make a lot of sense. Here are three reasons in particular.

Repaying the Loan

The goal is to get both parties to the mediation table because it can save major bucks over the litigation process. So, while it may seem crazy, paying for your spouse’s mediation fees can quickly become an investment in saving money.

You can agree to cover their part of the retainer to get them to the table, with the promise of repayment after things have been settled. When it comes to dividing shared debts and assets, the process is known as the equalization of net family property. The mediation costs incurred on behalf of your spouse can be added to the credit in your name.

When all has been settled, the equalization payment can be adjusted to reflect that credit. It is basically akin to a short-term loan, one that is meant to drive the mediation process forward. 

Providing Cost-Certainty

Here is an important fact to consider: the average contested divorce in Canada costs just over $27,000. Should the case go to trial, those costs can close in on $100,000 if not more. If that doesn’t hammer home the point, consider this: the first retainer fee (there will be more) will likely cost more than the entire mediation process.

The retainer generally only covers the initial legal costs. From there, it becomes increasingly more expensive. Considering the average length of a contested divorce in Canada runs between two and three years even if the issue doesn’t go to a full trial. That means a lot of time spent racking up costs.

By paying your spouse’s share of the mediation, it can become an investment in a much shorter timeline. It is also an upfront cost that will save you major bucks that litigation would happily bleed dry.

Taking Mediation Seriously

If you are dealing with a spouse that is highly skeptical of the mediation process, there is another point to consider. By offering to pay their way, it shows just how seriously you take the process.

Showing them that you really believe in the mediation method, enough to cover their way, can be the proof that they need to understand what mediation means. It shows them that you are serious about sitting down and coming to a resolution rather than battling things out to the bitter end.

Whether you ultimately get the money back or not, showing that this is a worthwhile investment can be enough to convince your spouse that mediation is the right way to go.

Send Them a Mediation Letter

There are a plethora of templates out there to choose from. The point of the mediation letter is to make it clear that the decision is to separate and that the goal moving forward is to keep things as agreeable as possible.

Use the mediation letter to lay out the reasons why mediation is a better option than litigation. This can include costs, impact on the children, the stress and timeline that litigation entails, and so much more.

If you don’t feel comfortable crafting the letter yourself, refer to any number of templates out there. The goal of a letter is to encourage working together to facilitate the best possible outcome for both parties through mediation