Inspired by the questions that come up in our Facebook community, Positive Co-Parenting After Divorce, family-lawyer-turned-mediator Rosanna Breitman has prepared this guide to everything you need to know about family mediation, deconstructing the biggest myths and explaining the realities.
When a relationship ends, most couples have questions about the legal side of separating or divorcing: What’s the best process? How can you extricate yourself from ridiculously expensive relationships with lawyers? What if you run out of money and have to represent yourself? How can you make the conflict end so that you can move on with your lives? Most importantly, how do you shield children from pain of seeing their parents embroiled in endless legal and interpersonal conflict?
I strongly believe that an effective mediation process, much like a successful surgery, can be people’s best hope for curing the cancer of post-separation legal conflict. Obviously, though, the more advanced the disease, the harder the “surgeon” needs to work! Some separating couples are at “Stage 1,” where neither is overly angry, bitter, or grief-stricken (perhaps they have already worked through these emotions). These people are generally determined to be fair, and they are more or less on the same page on the legal issues. For couples like this, the mediation process can be quick and relatively painless. But the farther along people are in the conflict (and/or the more painful the circumstances of the separation), the more experienced and creative the mediator needs to be. With rare exceptions (for example, where there are safety concerns or capacity issues), I believe that the mediation process is always worth attempting, and that there is always hope.
I made the decision 12 years ago to transition from practicing family law to practicing family mediation exclusively, and that’s what I’ve been doing ever since. Why? I was determined to help people resolve their conflict, not compound it. The Court system, unfortunately, tends to do the latter. I would never deny that there’s definitely a place for Court in intractable situations—but I’ll leave the fighting to others. Court, and the soul-destroying conflict that goes with it, should be a last resort, not a starting point for most people! A Hamilton judge addressed this perfectly this week when he blasted warring parents, particularly the mother, for spending $500,000 fighting each other in family court.
Related: How to Stop Fighting with Your Ex About Money
My goal, in mediation, is to help my clients identify the factors and emotions that may be getting them “stuck” (and some are way more stuck than others) so that they can resolve the legal issues, put the past behind them, and throw their energies into giving their children the best, most peaceful childhood possible. And 9.9 times out of 10, we achieve this goal. Where there’s a will on the clients’ part, there’s a way.
We can do it—together. Making the decision to come in for mediation is truly the hardest part!
Unfortunately, mediation is still not as well understood as it should be, and many people still believe that the only way to resolve their legal issues is to hire the toughest lawyer in town. That’s unfortunate, because spending tens of thousands of dollars in legal fees is not only unaffordable for most people, it’s completely unnecessary in the vast majority of cases. Read on to learn more about the myths and realities of mediation, and consider whether it might be right for you.
Mediation Myths and Realities
Family Mediation Myth 1: A mediator might force us into making final legal decisions about our children’s futures and our financial settlement.
Reality: Mediators cannot, and never should, force their clients into anything at all. A mediator should function as a neutral, impartial third party with subject-matter expertise and advanced conflict resolution skills. While a skilled mediator will guide the parties toward a fair resolution of their legal issues, the ultimate responsibility for decision-making rests with the clients.
Family Mediation Myth 2: You help people reconcile, right? I heard that mediation is the same thing as couples counselling.
Reality: No, and no! This is a very common misconception, but this myth is absolutely false. In couples counselling, the goal is to work on the relationship so that the couple can stay together. In mediation, the goal is to bring closure to a separation by finalizing an agreement on issues like parenting, support, and property division.
Family Mediation Myth 3: Mediation wouldn’t work for us because we already have lawyers and have already been to Court.
Reality: Mediation can work at any stage of the proceedings. While many separating couples do choose mediation as a first step, others choose to work with a mediator because they have grown dissatisfied with (or can no longer afford) the legal/court system, and are looking for an alternative process which they feel may better meet their needs and bring them closure more quickly. Many of my clients have come to me after many years in the “system” and have had great success resolving their issues—their only regret is not coming in sooner.
Family Mediation Myth 4: Mediation only works for “amicable” ex-couples. Our level of conflict is so high that it would be impossible to resolve our issues in mediation.
Reality: I have helped many high-conflict couples succeed in resolving their legal issues in mediation. A few have even been in the court system for years, and have been weeks away from trial. As long as both spouses want the conflict to end, feel fed up with court, feel safe in the mediation process, are prepared to make full financial disclosure, and are open, in theory, to the idea of making an agreement with terms within the realm of what is legally reasonable, mediation can be a very effective process for any separating couple.
Unfortunately, the court system fans the flames of conflict, so in these situations it is necessary to work very hard in mediation to undo some of the negative patterns that have become entrenched. But it can be done to a reasonable degree. In these situations, trust and friendship may not be realistic goals, but it is possible, with hard work, to create a workable, businesslike, tolerable “new reality” for the sake of the kids. Even the highest-conflict exes can usually agree on not wanting to ruin the kids’ childhoods, and on wanting to avoid a trial.
Family Mediation Myth 5: If mediation fails and we wind up in Court, my ex will be able to use the things I’ve said in mediation against me.
Reality: In an “open” mediation, this is a legitimate concern, but in a “closed” mediation process, nothing that is said in mediation may be used by either party in subsequent Court proceedings. I have all of my clients sign a contract at the beginning of the mediation process, committing to a closed process and agreeing that nothing said in mediation can be used against them. This contract is binding and the Judge has to respect it.
Family Mediation Myth 6: Mediation replaces the need for lawyers.
Reality: Most ethical mediators, myself included, will encourage (but obviously can’t compel) clients to obtain independent legal advice at the end of the process, prior to signing a final separation agreement incorporating the terms agreed to in the mediation. Some clients also find it helpful to consult a lawyer before beginning the mediation process, in order to get a sense of their legal rights, and/or to have a lawyer in the background to consult with along the way. The level of lawyer involvement depends on a number of factors, including budget, complexity of issues, and degree of client sophistication.
Unfortunately, divorce lawyers have a bad rap for fanning the flames of conflict in order to steal people’s hard-earned money, and people try to avoid them like the plague. In reality, I feel that it is the system that deserves the blame, and not most lawyers. There are many ethical lawyers (especially collaborative family lawyers) who will respect your goals of efficient closure and who will be happy to spend 2-3 hours with you reviewing the draft mediation agreement at the end of the process, discussing it with you, and helping you finalize it in a manner which is respectful of the mediation process. Again, I can’t force people to have lawyers review their mediated agreements, but I do recommend it.
Family Mediation Myth 7: Mediators are too expensive. My ex and I are on amicable terms. We can negotiate our own separation agreement.
Reality: In rare cases where the issues are very simple, this may be true. But when you introduce the slightest complexity (children, finances), a DIY separation agreement can be extremely dangerous. There is a reason mediators are paid for their skill and expertise; I, for one, have been through law school and the bar exams, years of practice as a family lawyer, specialized mediation accreditation, a master’s degree in conflict resolution, and have helped hundreds of families with their separations over the last twenty years. I know all of the potential pitfalls involved in negotiating a parenting plan and a financial settlement. My clients don’t. I care deeply about my clients, but I’m not personally involved in the emotional issues. My clients are. It can be extremely dangerous, in complex, emotional circumstances, to go it alone.
Unfortunately, I have had far too many clients come to me to clean up the messes they’ve created with DIY separation agreements. In these situations, we generally have to start all over on the basis that someone felt taken advantage of, did not understand the agreement, and/or did not have legal advice at the time the agreement was signed. People are shocked when I share with them the basic tenet of contract law that agreements can be set aside or modified in any number of circumstances, including the ones I’ve just mentioned. Being forced to start all over again can have significant financial consequences and can lead to a lot of anger and resentment.
Mediation, done right, is not very expensive, and is a solid investment in a peaceful future. My clients’ cases are completed, on average, in 10-15 hours spread over 2-3 days, and they split my hourly rate in half. Compared to each person paying a lawyer for years on end, it’s a bargain and (unfortunately) one of the best-kept secrets out there.
I hope that this post has helped you better understand the benefits of mediation, and that you may be feeling optimistic about what mediation can achieve for you! If you’re in the Toronto area and are interested in the possibility of working together, I’d be happy to speak with you, and your former spouse, further. Just send me an email and I’ll arrange a time for us to speak.
We wrote an e-book called 11 Ways to Keep Your Family Weeknights From Spinning Out of Control. To get it for FREE, simply subscribe to our newsletter recapping the best of thenewfamily.com and the podcast!