Marriage breakdown is often complicated and multi-sided, involving emotions, economics and change. Once a couple recognizes that they can no longer have a positive, beneficial or constructive future together, the perception is that the marriage is over and warrants dissolving. If a marriage must come to an end, it’s best if the couple can work together at having a ‘successful’ divorce. The success relies on both sides being ready to abandon their own anger, resentment or hostility. They must be capable of controlling their emotions, otherwise, it will only slow down or prevent a reasonable and fair settlement.
The goal of family mediation is to help resolve the economic consequences (division of property and arrangements for support), and if there are children involved, the parenting consequences (finding ways children can be provided for) of marriage breakdown. It is a fairly quick process that is intended to produce a formal written agreement.
The mediation process concentrates on the future rather than the past. The mediator works to generate feasible options that can be applied to objective standards, in order for both parties to have a fair and successful negotiated agreement.
Once the couple has made the decision to end their marriage, they should each obtain their own family law lawyer. Some lawyers offer a 30-minute free consultation. This allows you to get a feel for the lawyer, to see if he/she is a good fit for you. As well, it provides you with some insight on what is involved in the divorce process regarding income, support, custody, property, prenuptial agreements, etc. The lawyer will help evaluate the opportunities and possible obstacles towards a fair and positive mediated settlement. It is in each party’s own best interest to consult a family law lawyer before the mediation.
Be sure you have confidence in your lawyer. Don’t disregard legal advice, but make sure you make your own decisions, since you are the person who has to live with the outcome. Don’t be afraid to speak your mind or question something you don’t understand or agree with.
Another beneficial thing the couple should do once they have decided to dissolve the marriage is to set up a Negotiation Plan. This is helpful for each party to generate in order to have a more successful mediation, and to work out how they want their lives to change going forward. Keep in mind that going the mediation route means that you, as the couple, are deciding how your lives will be moving forward, opposed to not coming to a negotiated agreement in mediation and having a judge or arbitrator make those choices for you in court. It will be helpful for the lawyer to know your plans as well.
The Negotiation Plan — The issues to be addressed by each party:
- List your needs and interests, both financial and psychological.
- List the needs and interests of the other side (What you think your partner’s needs are and what she/he’ll be interested in).
- List the needs and interests of any third parties, such as children or grandparents.
- List the matters that are of paramount importance to you (more important than anything else)and those where you will be willing to make concessions (compromises, allowances).
- List the strengths and weaknesses of your case.
- List the strengths and weaknesses of the other side’s case.
- Think about your best alternative to a negotiated agreement (“BATNA”).
- Come up with some options for resolutions of the issues.
[Payne, J.D. & Payne, M.A. (2015). Canadian Family Law, 6th ed. (p. 146). Toronto, Ontario: Irwin Law]
#7 talks about your “BATNA” (BATNA = Best Alternative to a Negotiated Agreement). This is a negotiation approach that can be used for any negotiation (buying a car, negotiating child access). The idea is that you have to think about what you’re negotiating for, and if the other side doesn’t agree to your terms, what is your best alternative? If you give in, what does that look like? Or, if you alter your terms or come to a compromise, can you live with that? Or, are you better off the way things were when you walked into the room, than you’d be if you accepted the other side’s offer?
#8 wants you to think of solutions that you think would work on how to live separately? For example, the bigger decisions would be where would you live? Sell the house? Keep the house? One person buys the other out and keeps the house? Rent a house? Rent an apartment? Buy a town home? Buy a smaller house? Stay in the area? Stay close to the area? Move away from the area? The other big and most important decision will be how you see the custody working –5 days with you, 5 days with your partner? Weekdays with one parent, weekend with the other? One week on, one week off?
Other important issues that should be addressed:
- Issues relating to extracurricular activities
- Vacation plans
- Pre-school and after-school care
- Existing communication problems –How will you communicate to each other when you have issues/questions? By text, telephone, Email? Through lawyers?
- What will the pick-up and drop-off arrangements look like?
- How will you address minor changes or temporary changes to parenting schedules? How will these be dealt with?
Mediation Solutions 