What I have learned as a family mediator: things that will help and hinder a mediation process?

Mediation is an alternative form of dispute resolution where a mediator works as a neutral third-party to facilitate a conversation between two (or more) disputing parties and help them resolve some or all of their conflicts. Mediation goes only as fast as the parties’ agreements. I have mediated cases where it only took 90 minutes to work out an entire parenting arrangement and I have also mediated cases where it took months to bring people closer together. 

Here are some of the things that help move the mediation process along, save time and money for the couple:

Put aside time to collect all the necessary documents for financial mediation

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When dealing with division of property and working through child and spousal support, you need to collect and present a series of documents about all of your income sources, all of your assets and arrears. These documents need to be shared with the mediator and the other party in order to fully understand each other’s finances and negotiate within them. 

This process can be time-consuming and emotionally charged since these negotiations are about money. Give yourself time to gather all these documents which your mediator or your lawyer should tell you about based on your individual case. 

If you can, have on-going external supports

When people have on-going support such as a therapist or a support group, the mediation goes more smoothly because that external support creates space to work through and think about some of the issues that are coming up during mediation. In these cases because the person has been able to work through some of their emotions with their support, they don’t need to discuss them during mediation and therefore the time during the mediation is only spent on the negotiation process and reaching an agreement about the future as opposed to rehashing the past. 

Speak with a lawyer as soon as possible

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There can be a misconception that if you choose a mediator to work through a separation agreement you don’t need to see a lawyer anymore. Every mediator should correct this misconception by telling you that not only you are entitled to seek independent legal advice but it is in fact beneficial for you to speak with a lawyer as soon as possible. 

Why? As a mediator I will always give legal information to the clients about how the law views a particular issue and how different cases which have gone through the court system have been dealt with. But only a lawyer can give you advice on what they think you should or shouldn’t do. Speaking with a lawyer will help you understand your rights and your responsibilities and with that knowledge you are now empowered to negotiate on your issues and make informed decisions in those negotiation processes. They’ll also help you set your expectations of what a court-mandated agreement might cost and result in.

Wait until big emotions are settled before you start a negotiation process

When the pain and the feelings of injury are so fresh, many people find it hard to negotiate their issues. In these cases what happens instead is that the big emotions of sadness, hurt, anger, and grief can hijack the process to the point that the only thing the couple talks about is bringing up the past, how they each harmed one another, and what they should or shouldn’t have done. 

Although big emotions are a normal part of any separation and I also see them during mediation, couples that allow themselves some time for emotions to settle do much better in mediation. These folks have given themselves time to grieve and work through some of their feelings and in that process their feelings will not dominate the mediation. 

On the other hand, these are the things that hinder a mediation process and can outright end the mediation:

Not doing full financial disclosure

Whether it is the fear that disclosing full finances might lead to a higher child or spousal support; whether it is the discomfort or even shame about opening the books to a stranger; or whether it is anger or resentment about how finances were handled during the marriage, there are many understandable reasons that make the process of disclosing all of one’s finances and negotiating on them a challenging process. 

This is one of the biggest point of hindrance in many separation proceedings. You both are required by law to submit proof of all sources of income, proof of all bank accounts, investments, properties, and arrears. A mediator will use the same forms and calculations that are used in a lawyer’s offices and in both cases not providing a full disclosure will lead to the process being stalled with both time and money wasted.

When one or both parties are stuck in the past

People can bring up past behaviours of someone as a way to get them to understand the hurt and the injury they caused. But getting people to agree to that is a big task in the process of mediation, one that often does not work. There are often many good reasons that led to the decision of separation. Mediation is about honouring the past and working towards future goals. 

When the children are used as bargaining chips

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One of the most detrimental things that parents can fall prey to is to use their children as bargaining chips in the process of negotiations. Most, if not all parents want the best for their children and would like to have the best interest of their child in mind, however sometimes in an attempt to work towards that they forget that one of the fundamentals of the best interest of the children is to have healthy relationships with both their parents which must be facilitated by both partners (notwithstanding abusive and neglectful behaviours of course). If the issues with a partner cannot be separated from their parenting ability and skills, the mediation process often stalls.

When couples who are separating can have an eagle-eye view of their situation, with the best interest of the children and the family in mind, and when they can come to the table as equals knowing their full rights and responsibilities, they are then empowered to negotiate with each other. A mediator can help facilitate those ‘difficult conversations’ with empathy, compassion and a clear grasp of family law.