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  • Mediation

    We are currently trying to reach a separation agreement.
    I have asked that a mediator be named and all things that are not agreed upon brought to mediation. Whoever loses pays for the mediator.
    We may be going to court and was wondering if this is something that I can insist or will the judge see it as petty? She refuses to agree to mediation.

  • #2
    It's my understanding that having a dispute resolution clause like you described is pretty common to include in a separation agreement.

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    • #3
      Mediation is typically done on consent of BOTH parties. BOTH Parties must also agree on mediator so not sure how one can be named. And intake by each party is also done with each party and the mediator will ultimately decide if mediation will take place. Typically each party pays contributes towards the hourly fee. This helps enforce willful and consensual participation and no penalty mediation.

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      • #4
        I would like mediation to be in place and she does not want it.

        She is currently threading me with some court action and was wondering can I ask the judge to force her to mediation when we cannot agree on parenting matters?

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        • #5
          Request mediation or another form of alternative dispute resolution. Also make offers to settle.

          The courts don't like it when people waste their time when it could be solved outside of court, and are more likely to hit the party who is acting unreasonable and refusing alternative dispute requests (ie. mediation) with costs.

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          • #6
            I have been trying to settle it outside of court and we are getting down to the last few sticking points and mediation is a big one for me.

            Also she wants me to agree to her moving wherever she wants. I don't want to agree to this and I feel that I have agreed to a lot. I have fought long and hard to stay in my daughters life, I can't simply agree to her moving far away.

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            • #7
              In my SA it's stated that if either of us move x miles away from our home town we may do so but with the understanding that we will also be giving up our current 50/50 access.
              NO idea if that would hold up but I put it there anyways. Perhaps someone with more experience will have input.

              I would for sure hold firm on that point.

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              • #8
                Mediation isn't about winning or losing, it's about coming to an agreement.

                The 'loser' should pay? And who defines the 'loser'? Is it the one who compromises more? The one who feels more shafted...?

                Share the cost equally and go into it with an open mind and an eye to settling.

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                • #9
                  i don't mean to sound harsh here with "loser". This is just to stop unreasonable visits to a mediator. I am willing to share the cost and perhaps i will word it that way rather than the other.

                  If you could read my 4' high court file you would realize why I am thinking of adding that clause. Every time we have been in front of a Judge I have "won" not that it felt that way.

                  Comment


                  • #10
                    Originally posted by blinkandimgone View Post
                    Mediation isn't about winning or losing, it's about coming to an agreement.

                    The 'loser' should pay? And who defines the 'loser'? Is it the one who compromises more? The one who feels more shafted...?

                    Share the cost equally and go into it with an open mind and an eye to settling.
                    ^this is in the spirit of true mediation.

                    If someone threatened me with costs for a potential "loss" in mediation I'd tell them to get stuffed and take my chances in the courtroom. I don't even know if it's within the Rules of Court to do this - check out your Provincial Rules of Court which should be available to read online.

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                    • #11
                      Originally posted by leaffandad View Post
                      We are currently trying to reach a separation agreement.
                      I have asked that a mediator be named and all things that are not agreed upon brought to mediation. Whoever loses pays for the mediator.
                      We may be going to court and was wondering if this is something that I can insist or will the judge see it as petty? She refuses to agree to mediation.
                      Mediation doesn't technically have winners and losers the way court does. The mediator won't come to a decision for you. They will only have a bunch of discussion to try to help you come to a mutually agreeable decision (sometimes by 'leaning' on the more reasonable of the two parties).

                      Attempting to mediate first before going to court can be beneficial. Even if you don't come to an agreement, you can demonstrate to the judge that you tried. If your ex refuses to try mediation, then she's the one that looks unreasonable to a judge.

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                      • #12
                        I put a clause in mine divorce order saying that if either party sought to change the parenting agreement, s/he would have to give the other party a written statement of the changes sought. If the parties were unable to resolve the matter within 30 days, the party seeking the change would arrange at least one mediation session at a time convenient to both parties before seeking change through the courts. I don't know if this would actually hold up (I made it up myself), but I was trying to slow down any potential runaway litigiousness on the part of the ex, as well as try to work problems out before spending $$ on mediation.

                        With mediation clauses, I think it's important to specify that both parties will actually *attend* mediation before going to court. The separation agreement we had before the divorce order said that both parties would seek mediation of any disputes, but what this translated into was the ex just not showing up for appointments, or turning up 30 minutes late. You need to be explicit about what constitutes a good-faith attempt at mediation - not just a vague agreement that you will "mediate".

                        As for her moving wherever she wants - she is free to do that, but she is not free to move the kids, if you have shared custody. Some people have a clause which says that the children will continue to reside in the same school district - so there's some room for mobility for the parents (e.g. buying a new home or changing living arrangements) but one person can't take off with the kids.

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                        • #13
                          Mediation is possible only if both you agree. No one not even judge can force to do mediation. Judge can advise for it order it but mediation will fail if one of you don't agree or feel comfortable.

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                          • #14
                            Originally posted by stripes View Post
                            I put a clause in mine divorce order saying that if either party sought to change the parenting agreement, s/he would have to give the other party a written statement of the changes sought. If the parties were unable to resolve the matter within 30 days, the party seeking the change would arrange at least one mediation session at a time convenient to both parties before seeking change through the courts. I don't know if this would actually hold up (I made it up myself), but I was trying to slow down any potential runaway litigiousness on the part of the ex, as well as try to work problems out before spending $$ on mediation.

                            With mediation clauses, I think it's important to specify that both parties will actually *attend* mediation before going to court. The separation agreement we had before the divorce order said that both parties would seek mediation of any disputes, but what this translated into was the ex just not showing up for appointments, or turning up 30 minutes late. You need to be explicit about what constitutes a good-faith attempt at mediation - not just a vague agreement that you will "mediate".

                            As for her moving wherever she wants - she is free to do that, but she is not free to move the kids, if you have shared custody. Some people have a clause which says that the children will continue to reside in the same school district - so there's some room for mobility for the parents (e.g. buying a new home or changing living arrangements) but one person can't take off with the kids.
                            Well said. This is key for future. It is important to explain to her that mediation clause in your separation agreement is only a last minute resort and that she will never have to use it unless she wants to change something and you both can't agree together.

                            Also tell her it is standard for most separation agreements to have this to help avoid court and reduce the amount of cases that go before a judge because the courts are overloaded and that for this reason a judge would most likely accept it if you went to court to finalize your separation agreement.

                            Ensure you have a no move clause for the child. This is the most important thing next to 50/50 access schedule. Make sure you name the school in your agreement and that at least you live within the child's school district.

                            Comment

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