A fresh perspective on divorce, spousal support, child support, parenting after separation and everything family law

Mediation: what to expect and how to prepare

Lots of people consider mediation as an option to work toward resolution of their family law matter without knowing exactly what to expect from the mediation process.  Is this what mediation is going to be like?

No – it is unlikely that your mediation will be like a scene from the Wedding Crashers.  The mediator will  not sing songs played at your wedding – or even ask about your wedding (note – if you do have a story about a mediator singing in your mediation please feel free to share!) and the mediators probably will not look like Owen Wilson and Vince Vaughn…(once again, please feel free to share).  Like the video from the Wedding Crashers, mediators will often refocus and reframe the negative to work towards a constructive resolution of issues between you and your spouse.

In preparing for a mediation, there are lots of resources available on the internet and at the public library that can help you prepare for mediation and supplement the information your lawyer provides to you, as discussed below.

Deborah Lynn Zutter‘s book, “Divorce Mediation: What You Need to Know“, sets out the general process to expect for a mediation (although mediation practices differ based on the mediator and the parties’ needs):

  • Once the parties agree to a mediation they will contact a mediator to determine who is appropriate to mediate their case;
  • The parties will mutually select a mediator;
  • The mediator will meet with both spouses (usually independently of each other) for an initial meeting to review and sign an agreement to mediate with each spouse;
  • The mediator will have one (or a series) of mediation meetings with both spouses and their lawyers (if the spouses choose to involve their lawyers);
  • The mediator may create a summary after each meeting to record decisions that have been made or points that have been brought up by both parties;
  • Once the mediation is concluded, if an agreement is reached, a document setting out the terms of the agreement will be drafted – either by the mediator, the parties, or their lawyers;

A detailed description of the mediation process can also be found on JP Boyd’s website.  JP Boyd’s website also has a useful list of things to do and things not to do in mediation. I guess the parties in the Wedding Crashers missed this one:

  • Negotiations are stressful, but don’t use drugs or alcohol to calm your nerves. Drugs and alcohol will impair your judgment and reduce your ability to be objective.

The Ministry of Justice has a useful question-and-answer guide to mediation, including a summary of how to prepare for mediation:

Think about some important questions before you go to the mediation, such as:

  • What is the best outcome that you could reasonably hope for?
  • What is the worst outcome you should prepare for?
  • What are you most concerned about and what can the other person do to respond to those concerns?
  • What is the other person most concerned about and what can you do to respond to those concerns?
  • What are your options if you do not reach a settlement in mediation?

 

Written Notice: what constitutes written notice of a breakup these days?

Guest Blogger Jane Marsden

By Guest Blogger: Jane Marsden, Articled Student, Hart Legal

Any true Sex and the City fan will know that one of the harshest ways to be broken up with is by a Post-it-Note.

When the “Post-it-Note Episode” aired, my friends and I were outraged (yes, we know it’s only a show…).  In this episode, Carrie Bradshaw’s boyfriend, Jack Berger, sneaks out in the middle of the night, leaving a post it note in his place which reads: “I’m sorry. I can’t. Don’t hate me.”

 However, maybe Berger’s breakup method wasn’t so callous after all…

"Perfect for the office romance?"

Although anything short of a face-to-face conversation seems like an incredibly rude and gutless way of breaking up with someone, these days a Post-it-Note almost seems like a personal, or, at the very least, private way of breaking it off.  

While the Post-it-Note Episode aired less than ten years ago, a lot has changed in that short amount of time.  Since then, Facebook, MySpace and Twitter have become, for many, primary means of communication; they have added a whole new dynamic for people trying to navigate relationships and love.

According to my Google search (“facebook breakups”), and stories from friends, it’s all too common.

Social networking sites raise a number of interesting legal issues, including, does a Facebook status change constitute written notice of a breakup?

For example, it is not uncommon for unmarried couples to enter into cohabitation agreements before they start living together, or before they get married.  Couples enter into these agreements for a variety of reasons, such as having children from a previous relationship, wanting to protect assets, or setting out each other’s expectations for the day-to-day workings of the relationship.

A common clause in the cohabitation agreement provides that the parties’ relationship will be deemed to have ended on the first of the following events to occur:

  1. the parties live separate and apart as a result of a breakdown in the relationship for a continuous period of more than 90 days;
  2. the date a court grants an order recognizing that the parties have no reasonable prospect of reconciliation with each other; or
  3. the date a party delivers a written notice to the other that the relationship is terminated.

So the question is: is it enough for your partner to change his or her Facebook status from “in a relationship” to “single” for this to constitute “written notice” that the relationship has come to an end?

Although Canadian courts have yet to explore this specific issue, we do know that social networking sites have come up in matrimonial cases; usually around evidentiary issues.  In one recent case, W.M.W. and K.C.M. v. J.W. and M.M., Judge T.S. Woods considers Facebook evidence to show the nature of  a relationship:

 I must acknowledge in this connection that there is evidence to show that Biological Mother JW is in a new, live-in relationship with the individual to whom I have referred as “Boyfriend JG”.  However, the evidence also shows that that relationship has had its volatile moments.  A printout of messages published on Biological Mother JW’s Facebook page reveals that as recently as October 30-31 of this year (shortly before the hearing), she considered that Boyfriend JG had unceremoniously “dumped” her. 

The Guardian cited a 2010 survey by the American Academy of Matrimonial Lawyers which states that four out of five lawyers have reported that increasingly, divorce cases have relied on evidence taken from social networking sites.

It seems to be only a matter of time then before the courts will be called upon to decide whether someone’s change of Facebook status change is enough to constitute written notice that the relationship is over.