In general terms, the following steps are followed in the mediations I conduct:
- First, I speak to each spouse over the telephone and schedule individual face to face meeting which is what is called the “pre-screening” phase. I interview each spouse separately. I do this before commencing joint mediation sessions to make sure mediation is suitable. At this stage, I recommend that each spouse meets a lawyer to obtain some information about their legal rights and interests. Some spouses follow this advice and others do not, it sometimes depends on cost of hiring a lawyer. The mediation can proceed even if you do not obtain legal advice at this stage.
- After I have completed the pre-screening phase and we all agree that mediation is suitable and can proceed, I schedule the initial mediation session where both spouses and myself meet together. At this stage, I give an opening statement. I explain and provide information about the mediation process and the rules and goals of mediation. I help clarify and define the issues by firstly inviting each spouse to explain in general terms what the issues are that need to be resolved. We discuss the issues that need to be resolved and we develop a list of issues to be resolved (an agenda), often broken down in two groups (a) urgent issues and (b) non-urgent issues. I try to get the spouses to talk openly and directly about the issues right from the beginning.
- I establish a work schedule with the spouses for each of the scheduled meetings; for instance, one meeting may focus on the division of property, and another on support payments. We continue the mediation sessions (usually a series of sessions lasting from 1 to 3 hours each), until an agreement has been reached on each issue. I schedule the sessions at times and dates convenient to the spouses.
- Each mediation session is attended by both spouses and myself as mediator. Sometimes, the spouses may prefer co-mediation, in other words the presence of two mediators. If both spouses agree, the session may also be attended by other people whose presence the mediator considers useful, as long as they are neither experts nor advisors. I prefer not to hold co-mediations but will agree to do so if I believe it will assist significantly in the resolution of issues.
- At the beginning of the sessions, we review the agenda, review any documents available and list any other documents and information needed for the next session.
- The sessions involve discussions on the issues. We work towards resolving the issues, one at a time.
- At the sessions, you speak to your spouse and to me and listen to your spouse as to their views and preferences on the issues and their view on how to settle the issues. We explore options available and when a decision is made on settlement of any particular issue, I take note of the agreement reached.
- If needed, you can speak to the mediator independently during the sessions. This is called “caucusing”. If needed, we will take a short break and I will meet with both spouses independently and talk about how the process is going for them. Nothing said in caucus is private. I will disclose all discussions to both spouses.
- After caucusing, I bring the spouses back together to continue negotiations directly.
- At the end of each mediation session, we review and summarize the accomplishments made and if there has been agreement on some issues, I document them in my journal. I may ask each of you to sign a document confirming the settlement reached, for review by your lawyer. If no agreement was reached, we will review whatever progress has been made and discuss options and what needs to be completed for the next session.
- In between the sessions, the spouses usually take steps to obtain information and documents needed for the mediation to proceed (usually financial documents). Also, the spouses think about the draft proposals presented at the last mediation session and make decisions on whether the draft proposals are suitable/acceptable or if changes are needed.
- At any time, a spouse may suspend the mediation process to consult a lawyer or other person.
- At any time, a spouse can decide to terminate the mediation process. I may terminate the process if I consider that it may be more damaging to continue.
- Once a tentative agreement is reached, I prepare a “draft” separation agreement which I ask that you review with your own lawyer. This is called obtaining independent legal advice (ILA). Time spent on preparing the separation agreement is charged to the parties equally.
- If the draft separation agreement is satisfactory, I ask that you each sign copies with your lawyers and exchange them.
- Often, the spouses do not have their own lawyers in which case, the separation agreement can be signed in my office. However, my recommendation is always to obtain independent legal advice prior to signing any agreement.
- You are free to take as many breaks as needed during any mediation session.
- At the end of the mediation, I may produce a document setting out the points on which the spouses have reached agreement but without disclosing any details of what was said or written during the mediation process. Unless agreed to in advance and in writing, all my mediation sessions are confidential, and nothing from a mediation session may be used as evidence in a Court.
- Often, there will be issues needing urgent attention. If this is the case, we focus on these issues first and you may arrive at a temporary agreement addressing the urgent issues only.
- Sometimes, you cannot agree on all of the issues, but can agree on some. In these rare cases, I will draft an agreement encompassing the issues resolved, for review by you with your lawyer. In most cases all issues are resolved after a few sessions of mediation.
