Lisa M. Dewar, Family Law and Medation  
Family Lawyer and Mediator   Email












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Collaborative Family Law
and Mediation

The Collaborative and Mediation process are the most cost-effective ways to formalize terms for a separation.

A cooperative setting allows the most cost-effective way to formalize terms for a Separation Agreement. This kind of process may be appropriate if you and your partner are able to sit together at the same table, either with your own collaborative lawyers or with a mediator (with or without separate independent legal counsel). It is the role of the mediator to ensure that a process is in place for the parties to feel safe so they can say what is important to each of them. The collaborative process and mediation are described further below.

 

 

 Collaborative Family Law
1 A collaborative process uses the lawyers of both parties as negotiation coaches and legal advisors to their respective clients, with the parties having agreed in writing to settle their issues without fighting in court. Both lawyers are also trained mediators.
2 The parties themselves decide when to schedule meetings and what to discuss, and do the actual negotiating themselves. When the process is complete, the clients jointly sign an agreement documenting the outcome.
3 With the collaborative process both lawyers are involved from the outset, so both parties are protected in that regard and represented by counsel who support the fairness model arrived at by their respective clients.
4 Interdisciplinary teams may also include a divorce coach for one or both of the parties (perhaps a psychologist or other mental health professional), a child specialist for the children, or a financial advisor.
5 Clients retain control over the process, instead of leaving it up to a judge who may tend to split things down the middle. Stuart Webb, who initiated the collaborative process a couple of decades ago, gives the example of two people fighting over an orange which they end up dividing in two; one takes home half and squeezes it for the juice while the other takes home the other half and peels it for the rind. If they had disclosed what was important to them, each, each would have been able to have what they wanted from the whole orange (all the juice for one and all the rind for the other).
6 The collaborative process, with an emphasis on communication, teaches clients the skills to settle the immediate problems as well as future parenting disputes. It results in settlements arising from consensus, not emotional and financial exhaustion.

 Mediation
1 Family members may resolve their own conflicts during separation with the help of an impartial and neutral third party. A mediator has no decision-making power; rather she helps the participants clearly define the issues in dispute by shaping the communication process so that a heartful discussion can take place for the parties to voluntarily reach their own mutually acceptable settlement of the issues.
2 Mediation is a cooperative problem-solving process where the focus is on the parties' needs and interests (where you are coming from) rather than positions (the result you think you want). Many options may surface once there is better understanding of what each person really needs and hopes for.
3 During the mediation process the separating couple meets with the mediator in an informal office environment; the mediator explains the process to the participants and once the process is understood and agreed to, the mediator collects the information necessary to understand the issues; the mediator guides the communication process so that everyone has a chance to be heard, defines an agenda, guides the discussion of the issues one at a time, and helps the participants to explore various solutions, neutralizing the emotional barbs so that the best possible agreement can be reached; the mediator cannot give legal advice to the parties but may provide the parties with legal information respecting the state of the law in the area in dispute.
4 Mediation sessions typically last between one and two hours; the mediation process often takes between two to four sessions; each party agrees to certain simple rules to apply during the mediation process that provide each party freedom to speak without interruption by the other (example: no yelling or personal criticism).
5 All communications, correspondence and information exchanged by the parties is confidential and privileged so, if the mediation process is not completed, nothing said or done in the mediation sessions may be used in evidence in a court proceeding.
6 The goal of the mediation process is to reach a final agreement on all outstanding issues. If such final agreement is reached then the mediator (or one of the parties' independent legal counsel) will reduce the agreement to writing (a "Separation Agreement"). The parties will each be provided with a copy of the Agreement and strongly encouraged to review the Agreement with an independent legal advisor before signing it. In this way, the parties are better assured that any agreement reached is fully consistent with their independent legal rights and obligations.
7 The mediation process can be applied to the resolution of almost any form of dispute. Typically, upon separation the issues to be resolved will include parenting arrangements and financial planning. An agreement reached in mediation, drafted by a lawyer-mediator and signed before independent solicitors, is as fully binding on the parties and enforceable as an agreement reached in any other fashion.

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