Family Mediation Myths vs Truths
POPULAR MYTHS ABOUT FAMILY MEDIATION
By: Eva DiGiammarino – Family Lawyer & Mediator
The process of family mediation can allow couples who are going through separation/divorce come to an agreement in an amicable and cost-effective way.
There are a number of benefits to choosing mediation. Unfortunately, many myths exist which confuse people about the nature and process. Below are some of the most popular myths, debunked:
1. MYTH: Mediation is just as expensive as retaining a lawyer.
TRUTH: Mediation can be much more cost-effective!
Approximately 75% of people in Ontario go through separation/divorce without a lawyer, in large part because legal fees can compound and get unaffordable really quickly. Mediation can reduce the time and financial constraints of a standard divorce by cutting out unnecessary work and reducing billable hours. Best part, the mediator’s fees are split between the parties – so money and time are not duplicated.
2. MYTH: I can’t look out for my rights in mediation.
TRUTH: You absolutely can!
Mediation is actually the only process which provides you with 100% control over the outcome.
When parties go to court, it is a Judge who decides how you will split your property, who will have custody and how much you should contribute in support. In mediation, nothing can be imposed on you – you create the solutions that are right for your family.
If you are worried that you don’t know about your rights/entitlements, then it’s a great idea to speak with a lawyer prior to mediation. Often times the lawyer can draft you a memorandum outlining your rights, so you know what to agree to in mediation. You can also have the lawyer review your any agreements made in mediation prior to execution.
3. MYTH: All lawyers understand and support mediation.
TRUTH: Nope, some lawyers can’t/wont see the value.
The legal industry is characterized by its fear of change, and this is most apparent in the approach many lawyers take to family mediation. Family mediation is still a new process. Many lawyers who are used to adversarial divorce proceedings often believe myths about mediation themselves! For these reasons, it is extremely important that you meet with a number of lawyers before committing to work with one, to understand the different approaches lawyers take to settling legal cases.
4. MYTH: Mediation Does Not Produce a Binding Agreement
TRUTH: Yes it can!
Mediators can produce either a memorandum of understanding or a separation agreement. A memorandum of understanding is a non-binding report which outlines everything you agreed to in mediation. If you want to turn it into a separation agreement, you would to the memorandum to a lawyer to turn it into an agreement.
A separation agreement is a binding contract when it is executed by both parties. Some mediators have the training and requisite knowledge sufficient enough to prepare a separation agreement for their clients; some mediators are less comfortable and prefer to draft the memorandum. When you are researching mediators, be sure to ask them what type of agreement they can produce.
5. MYTH: We don’t need mediation because my ex and I can draft our own separation agreement.
TRUTH: If you do not have legal training, it’s extremely risky to draft your own agreement.
A separation agreement is a legal contract, meant to contain all of your legal obligations surrounding property division, custody/care of your children and support obligations. If it is drafted incorrectly, there are chances that your divorce will not be approved and you could even be liable for retro-active support.
If you and your ex-spouse are on the same page, then mediation is the best process for you because you can collaborate on agreement together. The difference between negotiating in mediation versus doing so on your own, is that you’ll be able to do so with a professional who knows what a thorough and valid legal agreement needs.