paying for a mediator when required as per a separation agreement

[fairshake]

Hi,

I've done a Google and nothing comes up. In my separation agreement a mediator will be used when conflicting issued about parenting come up.

Couple of questions since my x is EXTREMELY difficult to negotiate with and thinks she always holds all the cards. Also, she refused mediation to complete the separation agreement and instead we are emailing back and forth with our lawyers and very close. ( I keep saying that though )

1) Even though consulting a mediator regarding parenting issues is in the s.a. what's stopping her from refusing to go? I'm guessing here but I don't think there is anyway to really force her?

2) I'd like to add looser pays since I'll obviously be using this clause a lot but feel it will be a mute point since I'll never get her to the mediators anyway...

Any thoughts greatly appreciated!

[stripes]

In theory, with mediation there is no "loser" - you're supposed to work out a situation you can both live with, so a "loser pays" option doesn't work.

I suggest you specify that the cost of mediation is split between you, either separate bills or you both pay your half at the time of the mediation. (If you opt for the latter, a suggestion from experience - bring only the amount for your share in cash, no credit or debit cards, so you can't be pressured to cover the whole cost "and I'll pay you back really soon, promise").

You may want to say that if either party no-shows or cancels a scheduled mediation date within a set period (48 hours in advance or whatever), that party is responsible for whatever costs the other party might incur because of the cancellation. You can obviously be lenient about this if some big emergency comes up, but this might put a check on abrupt cancellations and no-shows (again, experience).

[Moolight]

Actually, I sugest that instead of mediation you select a 3rd party for abritation that way a decision will be made.

If you ex is difficult now do not expect mediation to work with the separtion agreement.

[stripes]

^^ Good point about using binding arbitration rather than mediation if the ex is unreliable or unreasonable. Be sure that both you and the ex are clear that whatever is decided in arbitration will be the "letter of the law" for both of you, if you choose to go this route.

[Canadaguy]

She refused mediation to complete the separation agreement

Mediation is good to have in the separation agreement but it all depends how it is worded. It can be paid by the initiator 100% or split 50/50. Yes both must agree to it.

If one party doesn't agree, get that in writing. Emails, letters registered mailed, even contact a mediator and the first thing they have to do is contact the other party to setup the mediator. If they refuse to go, the mediator will call you back and let you know. Get that in writing from the mediator.

what's stopping her from refusing to go?

Nothing. Everything in life is a choice. There is consequences for not following a court order. If she decides not to go, and you present to court that you did everything to discuss this change request to your agreement and mediate with no response from the other party it will look bad on her and stack the deck for your case.

2) I'd like to add looser pays since I'll obviously be using this clause

This won't work unless you word it as "mediation with the result of arbitration if both parties cannot come to agreement on any changes required to the agreement is mandatory before either party makes a request to court (motion to change, etc)."

Then, when you initiate mediation, let's say to change the schedule from being every Mon-Tue with dad to every Wed-Thu because dads work schedule changed hire a mediator who does arbitration.

Show the mediator/arbitrator you presented the other party with the request to change and communication showing you could not come to agreement, ask to hire them for mediation whereas per your agreement you pay 100% upfront, with the result being he/she helps you too mediate to a solution or decide for you both if you both can't agree.

You should also mediate the costs for the services and request the arbitrator to assign cost responsibility based on the outcome he/she decides. Might be split 60/40 or even 100% to her if you case is drop dead clear.

Even if you both come to an agreement in mediation on the issue (aka changing the schedule), if you don't agree to how the costs should be split (60/40, 50/50, 100/0, etc) than you can switch to arbitration and have the arbitrator decide costs.