Tag: divorce mediation
A Lawyer’s Role in Mediation
An option available to divorcing parties is mediation. Such an option is more likely to go smoothly when each spouse has a legal advisor. A legal adviser is a lawyer who is willing to consult with you as a part of the mediation process. This article will discuss divorce mediation and legal advisors roles in the mediation proceedings and process.
In recent times divorcing couples have started to turn to mediation and as a result this has lessened the need for traditional consulting lawyers. However, this has resulted in the increased need of a legal adviser who is willing to consult with the divorcing spouse as an integral part of the mediation process. Therefore, it is very common for many divorce lawyers to become mediators and the same lawyers are happy to work as consulting lawyers on cases that do not require mediation.
According to the Canadian Bar Association mediation is defined as, “the intervention into a dispute or negotiation by an acceptable, impartial and neutral third party who has no decision-making power, to assist disputing parties in voluntarily reaching their own mutually acceptable settlement of issues in dispute.” With this definition in mind, one may ask why there is a need to consult a lawyer as the mediator will be available as the neutral third-party. At some point during or before mediation there is need to consult a lawyer in respect of your legal rights. It is important to note that a mediator has no decision-making powers nor is his or her goal to provide legal advice but to assist divorcing parties to reach a mutually acceptable settlement on their issues. Therefore, by consulting a lawyer this can help you get answers that are tailor-made for your divorce case. An experience Ontario divorce lawyer can provide the following:
Evaluate your options – before the mediation a legal adviser can help you evaluate the option of mediation, assist with selecting a mediator and persuade your spouse to undergo mediation.
Act as a law coach – during the mediation, a legal adviser may act as a law coach on an as-needed basis. Between sessions you can consult with your legal adviser in order to clarify questions and prepare for negotiations. A good legal adviser can coach his or her client in negotiating techniques and help the client think up creative solutions to propose during the mediation.
Predict outcomes and costs – a legal adviser can help predict the range of possible legal outcomes if you had taken your matter to court as well as the cost of paying a lawyer to fight for such outcomes in court. By knowing the possible outcomes this is essential to a successful and fair negotiation.
Review agreements – one of the most important roles of a legal adviser is to review any written agreement prepared by the mediator to ensure that it says what his or her client wanted to say and to make it legally binding once signed.
Divorce Mediation Steps Pt. 2
Divorce Mediation
In order to achieve an uncontested divorce it is imperative that you and your spouse come to an agreement on all issues that are raised as a result of the divorce. Thus it is important for you and your spouse to communicate and maintain an open and healthy environment that allows for negotiations. Such an open and healthy environment for negotiations can be achieved by way of mediation. A previous article discussed the first two stages of mediation; agreeing to mediate and understanding the problem, this article will discuss the last three stages of mediation; the generating options stage, the reaching agreement stage and the implementing agreement stage.
Generating options – in this stage the mediator helps each spouse outline their reasons for wanting certain outcomes in the settlement. Such reasons consist of each spouses’ concerns, priorities, goals and values. By identifying the interests of a spouse it helps to frame the core goal of the mediation, which is finding a resolution of the issues that successfully addresses each spouses’ most important interests. In a number of cases the majority of issues need to be examined from the perspective of each spouses’ interests, this includes property and debt division, child custody, child support and spousal support. At times spouses’ interests may overlap especially when it has to do with children.
When such an overlap occurs this increases the chances of finding settlement options addressing their common concerns. However, it is important to note that it is not always possible to negotiate an agreement that satisfies both disputing parties’ interests. And as a result some interest may have to be compromised especially when there is limited resources that need to be divided between two households. However, if the focus remains on identifying and addressing each person’s most important needs and interests, the resulting compromises are ones that both spouses can live with.
Each mediator has their own preferred technique and steps when it comes to this stage, some prefer to conduct the stage in separate sessions while others favor joint sessions. Either way can work, but separate sessions will have to be repeated to the other spouse.
Reaching agreement stage – once the spouses frame the issues and interests clearly, it is now time to negotiate a settlement. This is the negotiation stage and usually begins with exploring possible options available to the spouses. With the assistance of the mediator the spouses discuss and evaluate the options until they narrow down the options the best for them. The stage comprises of compromises and concessions on both sides as well as a problem solving aspect in order to address each spouses’ most important interests as fully as possible.
Implementing agreement stage – in this stage the settlement agreement is put into writing and circulated to both spouses to review with their legal advisors. Many mediators, especially those who are also lawyers, will prepare the written agreement that will be filed with the court. It is advised to have a divorce lawyer Toronto to look at your own draft agreement on your behalf.