Why is a mediation agreement needed?
For case to be considered “mediation” there needs to be a contract/agreement with a family mediator and with the people mediating to set forth the ground rules and process of mediation.
This is a link to a video discussion.
Basic terms
You should read the mediation contract from beginning to end. If you have any questions or concerns please let the mediator know.
However, we want to highlight some fundamental terms.
Role of the Mediator
The mediator is neutral/impartial as between the two parties. This is essential for success in the mediator will work hard to ensure balance.
The mediator will also conduct screening process to ensure your case is appropriate to be mediated and to also help establish an effective process tailored to your needs.
Mediators are also well trained in how to facilitate an effective mediation both by understanding the basics of mediation and effective communication.
The mediator cannot give and should not give any legal advice. However, a mediator can provide information around possible legal results and outcomes. Each of you must rely upon your own lawyer for advice about what is best for you when needed.
Mediator can also draw an agreement should the two of you settle. However, for that agreement to qualify as and Interspousal Contract under the terms of the Family Property Act you must get independent legal advice.
Confidentiality
The agreement also ensures that everything that is said and mediation is confidential. This means a couple of different things.
First, anything said during the mediation cannot be used in court in the case that you may have in the future. This is sometimes referred to as “without prejudice” communication. This is important to ensure both of you can be candid in making your opinions known and making proposals that cannot he is to guess you later in the process.
Secondly, both of you are expected to keep this negotiation confidential and not pass on the details of it except to necessary third parties such as lawyers and other advisors. Sometimes, new spouses and partners may need to be informed.
This is your case and your matter to settle. Keep it private.
The Process
The Mediation Agreement also sets forth some of the basics of the process.
First, mediation is normally connected face-to-face either through direct meeting or through technology such as Zoom.
Secondly, we may use something called “caucusing” which is one on one meetings with each of you. This is sometimes done to facilitate better communication or discuss proposals or offers.
Thirdly, you are both expected to make full and candid disclosure of information relevant to your case including production of all relevant and helpful financial records from tax returns, to bank statements, pension or RSP statements, financial information about any companies that either of you may have an interest in including producing financial statements and so on.
Withholding important financial information will undermine the negotiation. As well, if you have withheld important information a judge may set aside any agreement that you have come to on the basis of nondisclosure.
The contract also sets forth particulars about online negotiation to ensure that is effective.
Either of you may terminate mediation process following your participation in it.
Payment
The contract also sets up payment for the mediator. Generally, each of you will be responsible for one half mediation cost.
