August 31, 2011



Mediate Your Divorce: Don’t Lawyer Up and Head to Court

Top Judge sounds alarm over court access in her speech on August 13, 2011. Chief Justice of Canada explained why family divorce cases in particular should avoid the court system

“In the family area, they get mired in processes that actually exacerbate the dispute and have bad consequences for the children involved and for preserving as much of the family assets as can be preserved.”

Beverley McLachlin would know. She is Chief Justice of Canada’s final court of appeal: the Supreme Court of Canada. When one of the best judges in Canadian history tells you that almost all family matters do not belong in the court processes, reasonable divorcing couples must listen and choose the family mediation process.

The benefits of mediation over using the court process include…

  • You learn how to effectively negotiate with one another.
  • You avoid the high cost of divorce court and legal fees.
  • You, rather than a third party, control the outcome.
  • More care can be given to creative approaches.
  • More care can be given to use the tax law to both you and your ex-spouse’s benefit.
  • You have an accessible, inexpensive process to return to for disputes that arise as the children get older.

Here are the first 5 steps to help you reach a successful divorce settlement…

Step #1 Choose to Mediate and Choose to Stay Out of Court Process. Parties divorce because there is a lack of trust, communication and cooperation in the marriage. When a legal action starts and the parties head to court, this lack of trust, communication and cooperation gets worse. In contrast to the court process, the mediation process is designed to improve the trust, communication and cooperation between the parties because a certain degree is necessary to reach a settlement.

Step #2 Choose a Family Mediator. Family mediators teach the parties to employ cooperation and compromise in arriving at a settlement agreement, which leaves far less emotional scarring than the adversarial lawyer-to-lawyer method. The cost of the mediator will probably be less than the parties will pay if they paid for their opposing lawyers to argue with each other. Choose a family mediator who has experience in divorce law, seeing what happens at divorce and can help the parties imagine fair and workable solutions. A mediator who teaches the parties the art of good negotiation that leads to mutually agreeable solutions. If the family mediator is a practicing lawyer, then the mediator can also draft the separation or divorce agreement.

Step #3 Sign an Agreement to Mediate. The mediator and the parties sign an agreement to mediate, which is a written agreement outlining the terms on which the mediation will proceed. It is usually signed after the parties have agreed to mediate but before the first mediation session commences. Mediators have their own preferred form of the agreement. The Agreement will include a brief description of the process, the neutral and impartial role of the mediator, the divorce issues in dispute, and the objective of reaching a mutually agreeable resolution. It should deal with the following matters: confidentiality, full disclosure, fees and costs, the role of legal counsel and ending the mediation.

Step #4 Don’t Lawyer Up. Find “Mediation Friendly” Lawyers. Lawyering up occurs when each party hires a divorce lawyer who uses the court process to transform the parties from divorcing parties into world’s worst enemies. It happens all the time. Lawyering up weakens the co-parenting relationship at the outset which harms the kids and the legal bills eat up the family’s assets. Instead each party should hire a “mediation friendly” family lawyer who will provide input during the process and can be a helpful part of the mediation process. The family lawyer will advise the party about the best case and worst case scenario and the party’s individual rights. This type of family lawyer will ensure that the party’s rights are protected without derailing the mediation process and without having to go to court.

Step #5 Go to a licensed therapist. An experienced mental health professional will be more effective, will cost less per hour than your lawyer, and will help the party deal with the emotional peaks and pits that continually throw the party off balance. In addition, each party will have developed a relationship with a therapist who can guide them through the rocky recovery period after the divorce is granted.

In my next blog post—Successfully Mediating Your Divorce: Steps 6-10—you’ll read about some the steps to a mediated divorce settlement, and how mediation has great advantages for divorcing couples.


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