Answer to your prayers? If you know the right questions!
Family law mediation can be the answer to help some separated parties settle their disagreements.
But in my experience as both a family law lawyer and mediator there remains a considerable amount of confusion and misinformation about the process of mediation, and the roles of mediators.
Probably once a week I will meet with a separated spouse for a consultation and be told that “my ex and I want to meet with a mediator and have them write up a separation agreement to avoid legal fees”.
So just what’s wrong with this approach anyways?
Firstly, while some mediators can be family law lawyers (such as me) a mediator need not have any legal background or experience. But regardless the role of a family mediator is not to provide legal advice, or to ensure that your legal rights are being protected, but rather to help resolve disagreements.
Some mediators will try and mitigate the lack of prior legal advice by preparing a separation agreement and advising the parties to obtain independent legal advice before executing it. Other mediators will simply prepare a memorandum of agreement and advise the parties to have the separation agreement prepared by legal counsel.
In my opinion it is far better to ensure you know your legal rights before attending mediation. If you do there is a far greater chance that any mediated settlement will be in your best interests, (and also no need to advise your aggravated ex that the mediated settlement needs to be re-negotiated because you weren’t aware of your legal rights!)
Secondly, before considering mediation you and your spouse should try and discuss what matters may be outstanding in the first place! If there is general agreement regarding the parenting of any children and the division of assets and liabilities there may be no need to retain the services of a mediator.
To find out what if any disagreements there may be, I recommend, if possible, that you and your ex first sit down at the kitchen table and review the various issues which need to be resolved. To assist my clients with this process I provide my client with a checklist which can reviewed by the parties, and then used as an outline for the preparation of a separation agreement, (or at the very least identify outstanding issues).
Thirdly, once you know your legal rights, and you and your spouse have defined the matters which need to be resolved, is the right time to consider retaining an experienced family law mediator.
So if you follow my advice, and ask the right questions, mediation may just be the answer to your prayers!