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**sasha1** · 04-27-2006, 03:58 AM

This is an excellent question, SHJ, and I'm looking forward to the answer! I'm not sure if it's dependant on where you're located? I'm in Alberta, and in the Parenting after Separation seminar I attended, they said that most mediators will insist on only the husband and wife being present; many are even against the lawyers being present.

Myself, I think a group family counselling (excluding kids) would be more appropriate for some couples. In my situation, both of our parents and siblings are very involved, and there are many lies that need to be exposed in order to get perspective and reality back in the picture. Lots of unknowns, too. And I think the best thing for all of us at this point would be to get it all out in the open, you know? And yes, to have a counsellor present to essentially referee, and ensure that we don't let emotion get the better of us and that we keep "on topic" and resolve the issues one by one, instead of just round and round arguing.

**Divorcemanagement** · 04-27-2006, 07:25 AM

About mediation

SHJ - the mediation process works as follows:

Step 1 - Pre-Mediation

Both parties meet with the mediator individually to discuss the issues they would like to mediate. This is kind of a screening meeting to determine whether the mediation is even feasible. If it is feasible - go to Step 1.

Step 1 - Mediation

The mediation process is made of of mediation sessions lasting no more than two hours. The first session will give both parties an opportunity to sign an agreement to mediate which establishes the rules for mediation, who is going to pay, that the mediation is without prejudice and nothing that happens in mediation can come up in court. Once the parties sign the agreement to mediate, each receives a copy and the process begins.

The mediator is trained to facilitate discussion about each party's position or difference of opinion. The mediator is cannot give legal advice or tell either party what they should do, he/she simply facilitates the discussion - reframes the information being presented from both sides and helps both parties make the transition from negotiating based on their position to negotiating based on the interests of both parties.

You will see a big flip board in the mediation room. That flip board is where the mediation notes are. That's where a mediator writes down your ideas, her ideas and helps you both find a happy medium - issue by issue.

If the mediation is successful go to step 3.

Step 3 - Mediation Report

The mediator will draft a mediation report which is a report of what the parties agreed to. The report is given to both parties with the understanding that both parties will see their lawyers, have the report drafted into a binding agreement or a Consent Order - the agreement is signed.. boom! You get on with your life.

Mediation is not counselling. It is a process by which someone whose only interest is in helping you both solve your problem assists you both in finding the happy medium that both parties can live with.

**Grace** · 04-27-2006, 01:15 PM

I think it wouldn't be a good idea to bring family members to mediation. Too many cooks stirring the pot. But having your lawyer present would make sense, especially if the deal could be done & signed right then and there, this would eliminate any "change of mind" from the mediator's office to the lawyers office.

Just my 2 cents.

**Divorcemanagement** · 04-27-2006, 01:20 PM

Lawyer assisted mediation is useful for some people, however a lawyer's role is to protect their client's position and the intent of mediation is to get both parties to shift from their position to and interest based approach to looking at their dispute. It's also important to remember that nothing can be signed in mediation other than an agreement to mediate because the process is without prejudice. So the mediator's report which is issued to both parties can then be taken to lawyers and drafted into a binding agreement.

**Grace** · 04-27-2006, 01:31 PM

Thanks Sean, I didnt know that. My mediation experience was completely different. What if the mediator is also a lawyer could you have a signed deal then?

**Divorcemanagement** · 04-27-2006, 03:31 PM

There are lots of mediators out there who are lawyers, however I've not seen a mediation process by which a legal document is drafted during the mediation and then signed.

**Springheeled Jack** · 04-28-2006, 03:16 AM

Thanks

This is my second marriage and my second divorce.

The first divorce although painful was a dream. I got the house and the bank account. my first wife didnt want a thing she jut wanted out of the marriage taking my our son with her.

This time I wont be so lucky.

Im glad that I can put a stop to her bringing any one with her.

**Lindsay** · 05-02-2006, 02:47 PM

Hi Sean,

I've not seen a mediation process by which a legal document is drafted during the mediation and then signed

I have seen a couple cases where the parties attended at mediation and then entered into a less detailed agreement prepared by the mediator. Some parties will afterwards wish to enter into a more detailed separation agreement.

Also, we recently had a case where the parties attended counsel-assisted mediation, and the mediator drafted up an agreement once mediation was complete. In this case, the mediator was also a lawyer.

Lindsay

**Divorcemanagement** · 05-02-2006, 03:54 PM

Yeah - I am not saying it doesn't exist. That whole "dual role" thing places a mediator in a position of liability if the agreement goes south. The various mediation associations and societies are all over the place on what a mediator should or shouldn't do - sometimes in a contradictory fashion. This can be confusing for people in the process.

**Lindsay** · 05-02-2006, 04:04 PM

I absolutely agree, I definitely think it's risky.

However, I think having a "mini contract" drawn up by the mediator is still a good idea, assuming the parties intend on turning same into a formal separation agreement, with both parties obtaining ILA. At least some kind of agreement with the basics will be in place in the process.

**Divorcemanagement** · 05-02-2006, 04:25 PM

One interesting form of mediation I am still trying to get my head around is Med/Arb... it is gaining some degree of popularity here in Alberta - what about your area?

**Lindsay** · 05-02-2006, 04:36 PM

Are you referring to a combination of mediation and arbitration?

**Divorcemanagement** · 05-02-2006, 04:42 PM

Yes that's right - where the mediator becomes the arbitrator under agreement between the parties. I am not sold on it although I could see it as a more affordable method of getting resolution that would be less than the cost associated with litigation.

**Lindsay** · 05-02-2006, 05:03 PM

I'm not sure. I don't have much experience with arbitration, but it seems to me that binding mediation gives the best of both worlds. The mediator can at least try to find some common ground at first, and if that fails, continue on as an arbitrator. The mediator turned arbitrator would already be fully aware of the issues, would know what each party's position is, and would already have an idea of who is being reasonable and who isn't.

I really can't think of any cons to binding mediation. Any extra costs incurred as a result of the mediation turning into arbitration would, like you said, certainly be a lot better than having the case brought to court. I suppose one downside would be for the mediator having to switch from a neutral ground to a decision-making third party. Would that be an issue for you?

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