If you and your soon-to-be ex have decided to use mediation as your source for divorce resolution, having the right mediator may make all the difference. A mediator has a special role, and it is not an easy one. They must try to make the process as painless and fair as possible.
According to a one successful mediator, when facilitating divorce issues, the most important role they perform is listening. That may sound simple, but there are some rules they need to follow to be successful. They must:
1. Listen closely, ensuring that each party gets to speak freely without being interrupted.
2. Listen with an open mind without judging.
3. Ask questions to ensure understanding of what was actually meant, and try to understand each person and their goals.
4. Remain stable when pain or disappointment is evident in either party.
5. Listen without trying to fix or minimize the issues.
A good mediator does not have to personally agree with, or even like, a person, but should respect his or her perspective of reality.
Fostering communication and understanding between the two parties is the best way to ensure successful mediation. Spouses are more apt to be agreeable, and relationships post-divorce are usually more amenable as well, which is a big plus when children are involved.
Most people chose divorce mediation because it is less expensive, quicker and usually a friendlier way of resolving issues. But what makes it work is a good mediator with good listening skills, who understands that his or her role is not as “decision-maker,” but to guide and oversee the mediation process.
If you plan to use mediation to resolve your divorce, take time to select the proper family mediation group. You may need additional professionals involved in your divorce process, and you need a mediator with a team of resources available.
Source: Huffington Post, “Secrets of a Successful Divorce Mediation,” Alison Patton, June 21, 2015
If collaborative family law is supposed to be a friendlier, healthier way of solving family disputes, what happens when two people cannot agree? First of all, let me say that is a perfectly “normal” situation. If the parties were already agreeing, they wouldn’t need either a mediation process or a court to solve their dispute. The goal is to help those who cannot agree come to a satisfactory agreement outside of court, but it does not mean that all emotions will be absent or silent. On the contrary, while a collaborative family law team hopes to see parties come to an agreement in the most amiable way possible, parties are encouraged to state their needs and desires in the process. Lawyers, mediators or arbitrators are there to keep each party on task, to provide guidance and support, and to assist their clients in finding a solution that each can live with.
During the process, one or both parties may express anger, tears, sadness or a variety of other emotions. As long as the emotions are expressed in a healthy and non-dangerous fashion, this is okay. The goal is still the same — to work through the process; however, each party has the opportunity to make his or her case for what is important to them. Knowing what is important to each other, and why, opens the door for compromise.
If parties are having trouble coming to an agreement, other professionals may be recommended to provide advice. For instance, if a couple who is divorcing cannot come to an agreement about property division, a financial adviser may be called in to help provide advice and possible strategies.
Alternative dispute resolution includes a variety of different means for resolving disputes: mediation, arbitration, collaborative law or med-arb. An attorney who practices ADR can help you decide which is best for your situation. Whether you need assistance with a divorce, child custody, property division or are having a dispute of a different kind, if you are looking into ADR, you have made a good choice.
ADR can be much more suitable for people who don’t want to go to court to resolve their differences. It is also private, which is not the case when you are in the court system. Many people want to know: what is the difference between these types of ADRs?
Collaborative law involves an attorney for each party. Participants sign an agreement at the beginning of the process, and the goal for the end result of the process is a binding agreement that each party must abide by. During the collaborative process, a sequence of conferences takes place between the four parties and other professionals as needed.
In mediation, the parties have a neutral, unbiased mediator who listens to the issues and helps the parties come up with an agreeable resolution.
In arbitration, a neutral party listens to the issues by both parties, and then they make a non-biased decision, similar to a judge in court. However, this process is much less expensive than going to court and is private between the two parties only.
Med-arb is using both mediation and arbitration to resolve disputes. The mediator and arbitrator may be the same person or two different people. If mediation works, there is no need for arbitration; however, if some issues still cannot be agreed on, the arbitrator will then step in and make a decision for the parties. You can read more about the med-arb process here.
Some divorces in British Columbia go very well. The two parties sit down and hammer out an agreement about how property should be split up—one person takes the house, the other takes the car, the bank accounts are split down the middle. Other times, though, people can’t come to any fair agreement on their own.
That is why the property division case may need to go to arbitration.
The problem with splitting things up on your own is that you both may want an outcome that favours you. People are naturally competitive, and you may feel you deserve it. The goal of the court, though, is to make sure that things are actually divided equally. There are creative ways to do this.
The easiest way is just to split cash down the middle, sell everything that can’t be divided, and split up any money that’s gained in the sale. If the house sells for $300,000, you both get $150,000 and go on your way—unless the mortgage must be paid first.
Other times, things can be moved around so that the amounts are equal. For example, if there is a bank account with $400,000 in it, it would usually be split with $200,000 for each side. However, if you want to keep the house and your spouse doesn’t, you may be able to get the entire home if you only take $50,000 from the bank account, essentially buying your spouse out with the other $150,000.
The whole process can get pretty complicated, and there may be many legal battles along the way, so be sure you understand your rights.
Source: Financial Consumer Agency of Canada, “Sharing your property and debt after your relationship ends,” accessed June 19, 2015