I love meeting with prospective clients about the mediation process. Oftentimes, they want to mediate but are not sure whether the process is right for them. Through our complimentary process calls, which can be booked here, I am able to debunk some of the myths about mediation to help our prospective clients make an informed decision about the resolution process they choose.
Here are three of the most common questions we receive about the process:
Myth #1: Do we need mediation if we pretty much agree on everything? Should we just go straight to our lawyers to have the agreement drafted?
You can certainly go straight to your lawyers to begin the process of having a separation agreement prepared. However, there is a very good chance the lawyers will ask questions, including requests for financial disclosure, to ensure all the bases of the agreement are covered.
Sometimes, you just don’t know what you don’t know until you know it.
Mediation provides you with a neutral process to work through these questions together in real time with a neutral process that is collaborative and respectful.
The more you can sort out between yourselves outside of mediation, the less time and money will be spent in mediation, which is great. Then, the mediator can review the spirit of your agreement and work with you to flush out the details so that you can arrive at a fulsome agreement. Our goal will not be to disrupt the work you have already done, but rather, to pick up from where you are and help you cross the finish line in strong form. You can then meet with your lawyers to review and sign the agreement that you worked together to prepare.
Myth #2: We cannot communicate with one another. Is mediation possible?
Yes – it is possible. The only way for your mediator to really know if mediation is appropriate is to begin the process with confidential screening meetings with both people to discuss the mediation process, as well as to explore the dynamics between you and your goals and concerns. All certified or accredited mediators are required to screen before mediation, and for very good reason. The safety and productivity of a potential mediation can depend upon screening first.
We do not “screen out” parties for a mediation very often. We are more likely to focus on designing a process that will work for the parties in their circumstances. For example, we may decide a shuttle mediation is appropriate, where each party has their own room and the mediator travels between the separate rooms. We may recommend that there be certain work done before mediation. Or maybe that counsel attend, or that support people attend.
Our mediators are experienced in dealing with a wide range of communication styles and challenging dynamics and we strongly believe in extending the option to mediate whenever it is possible.
Myth #3: Mediation is a one-stop shop service to a legally binding agreement
It is possible to mediate without the involvement of a lawyer. It is also possible to ask your mediator to prepare a draft separation agreement if they are a licensed family lawyer. However, if you are working with a certified or accredited mediator, it is not possible to mediate and sign a separation agreement drafted by your mediator without the involvement of a lawyer. This boundary is by design and serves to protect you and to strengthen the validity of any agreement you reach in mediation.
I often hear “we want to keep lawyers out of this as much as possible – no offense – we know you’re a lawyer too”. My answer is the same every time. I understand! For many, the involvement of lawyers feels incompatible with the spirit of mediation, but that does not always have to be the case. There are settlement-focused lawyers out there who will do what they can to support rather than hinder the mediation process. We are happy to provide you with referrals, if needed.
This blog is intended as general information and not legal advice. Specific questions regarding your own circumstances should be addressed with a family lawyer.
Robina Khan is an experienced family lawyer and she is here to help. If you need assistance with a cohabitation agreement or marriage contract, or are in the process of separating from your spouse or considering separation, click here to schedule a free Zoom call to learn more about our services and to answer any questions you may have about the process of mediation.