Milka Vujnovic B.A. LL.B. LL.M (ADR) - Family Law and Mediation Services - Hamilton, Ontario, Canada

What would you do if?

• Your marriage, from your perspective, seems quite normal.  Then without warning, your husband tells you he wants to leave. 
• Your wife has seemed distant for sometime.  Something’s up but you’re not quite sure what.  Then one day you come home to find that she and the kids have left.
  
  

Now what? Pulling yourself together after the initial shell-shock of marriage break-up can be difficult and emotionally draining.  Then, as the reality of the situation sinks in, you’re faced with the gut-wrenching fear of the unknown.

Who do you turn to? How do you deal with the overwhelming emotions - fear, anger, grief, guilt, sadness and a crushing sense of loss?  How do you prevent your life from further spiralling out of control?  Your biggest fear is the “divorce from hell” - everybody knows someone who has spent years fighting with their spouse and is now bitter, alone and definitely poorer.

This is your greatest nightmare.

Divorce Mediation

Mediation is a good way to get you off the destructive path.  Divorce Mediation helps a couple come up with an agreement they both want – something that’s best for them and their children. In a traditional divorce, couples rarely have frank “face-to-face” discussions about their real needs and concerns.  The focus is often on getting the most for themselves, often at the other person’s expense.  Good legal advice regarding your rights and entitlements is important.  However, legal advice on its own, can’t guarantee a respectful, long-lasting resolution of your marital problems. You need to talk to each other, regardless of how difficult it can be.   With the support of a mediator, couples can work together, with each person having a chance to ‘tell their story’ in a comfortable and safe place.

The traditional divorce is a win-lose process that tends to focus blame on one party and can leave both parties more angry and resentful. Mediation, on the other hand, is collaborative and gives you the best chance for a win-win solution. It encourages open, one-on-one discussions that help spouses come up with solutions that work for them.Mediation puts the parties in the driver’s seat: it lets them steer the resolution process by asking questions, finding answers and negotiating the final outcome.  Ultimately, the couple decides what’s best for them and their kids – not the mediator, the lawyer or the judge. 

How does Mediation work?

The mediation process is driven largely by the couple with the assistance of the mediator and typically involves:

• Initial sessions where the mediator meets with each party separately.  The mediator can help each person identify individual interests and look for common goals.
  
  
• Joint meetings - A number of meetings are held with the mediator where the couple works through an agenda that they create. The mediator helps the couple negotiate with each other. How many sessions will it take? Sometimes people can come to an agreement in one session; sometimes it takes six or seven. It all depends on the number and the complexity of the issues
  
  
• Discussion, collaboration and creative problem solving - During each session, both parties are given the opportunity explore their interests and are encouraged to be aware of their spouse’s needs and concerns.  Mediation promotes discussion, collaboration and creative problem solving. The couple can brainstorm with the mediator to come up with solutions that are right for them.
  
  
• Legal and non-legal issue - You can deal with whatever issues are important to you and your spouse, both legal i.e. parenting, spousal and child support or property division, together with any of the numerous non-legal issues that are often just as important to you. The mediator who is a lawyer can give you general legal information but won’t make decisions for you.  That’s your job.
  
  
• Experts - Sometimes people need help in sorting things out. A house may need to be appraised, a pension valued or they may need some help in dealing with parenting concerns. The mediator can refer the couple to appropriate experts.  The cost savings to the couple can be enormous when they hire these experts jointly.
  
  
• Memorandum of Understanding - When the couple has reached agreement on the issues that matter to them, the mediator will prepare a document called a Memorandum of Understanding which outlines the details of their agreement. This document is then taken to their lawyers for review and finalization.
  
  
• Legal Advice - Often people wonder why they need to see lawyers if they have reached their own agreement. It’s wise to have lawyers on the sidelines during the mediation process to give each of you legal advice on your rights and entitlements.  Your lawyer is your adviser; someone who is a resource for you and provides you with advice to help you negotiate with your spouse. You need to remember that in mediation, your lawyers do not control process.  You do. 

What do the research studies tell us?

Children are the clear winners when their parents are able to continue to cooperatively parent even though they are separated. Conflict in minimized through mediation and channels of communication are more likely to be open.

Mediation clients are generally more satisfied with mediation than adversarial clients are with the process of lawyer negotiation, court hearing and trials.

With early mediation intervention, families benefit from lower conflict and better outcomes than those who went to court.

Compliance rates are generally higher with mediated agreements than litigated outcomes.

Over the long term (one study looked at outcomes 12 years after mediation) parents who mediated were more satisfied and were able to discuss problems that arose and resolve them more frequently by using cooperative methods.

Is Mediation right for you?

If both parties are committed to making it work, mediation is a lot less costly than a traditional divorce.  The emotional and financial savings can be significant.

Mediation provides you with the greatest opportunity to move forward with your lives as it doesn’t dwell on the past. It’s positive and constructive and gives you control over your future. You make the decisions about how you will deal with your financial assets and how you will parent your children.

Much of the focus of a traditional divorce is finding fault with your spouse in order to get what you want i.e. the kids, support or property. People feel vulnerable and wounded by separation. One of the goals of mediation is to help heal the wounds between spouses, and in doing so build a foundation for positive communication after separation or divorce.

Although mediation is a good fit for many couples, it isn’t for everyone. It may not be appropriate in situations of severe power imbalances between spouses or in cases of physical or extreme emotional abuse.  A mediator is trained to screen out those cases of power imbalance or abuse.  However, for many couples, it’s a great option, one that helps them rebuild their lives in a positive, constructive and considerate way.  Mediation helps them avoid becoming casualties of the “divorce from hell.”  Everyone wins, especially the kids!

Milka Vujnovic
© November 12, 2009
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