Is Mediation for You?

The mediation process, also called Alternative Dispute Resolution (ADR), requires two individuals who are willing to look past their emotions and, in a spirit of cooperation, find the best solution for their unique situation. Mediation isn’t a magic pill — it can’t turn a terrible situation into a good one — but it can help to create a future everyone can live with.

For mediation to be successful, there has to be some communication between you and your spouse, or at least a willingness to focus on the issues rather than on your emotions. You and your spouse must be willing to make concessions, and at times compromise, in order to find a workable solution.

Both parties must understand that everything discussed at the mediation table is to be in the best interests of the family. If both of you are committed to resolving your conflicts, the rewards of mediation can outweigh the effort required to talk and compromise.

Studies have shown that mediation is very much the way of the future.  While statistics vary, couples are generally more willing to comply with the terms of a solution they have drawn up themselves, and mediation can also provide a sense of closure to a relationship gone sour.

“Mediation does give people the opportunity to deal with their emotions,” says Judith Ryan, a Toronto-based mediator who has been in practice for 20 years. “They can talk about their feelings, express emotions, and feel validated.” The court system doesn’t allow this type of interaction. “Court is not a therapeutic process,” Ryan says. “You’re on the stand giving evidence. They’re interested in facts — not necessarily feelings.”

“Mediation is an opportunity to have closure of the relationship,” says Joan Sinclair, a family mediator, social worker, and counsellor in Toronto. “People can express remorse and say their goodbyes.”

Separating the emotions from the issues

During mediation, your emotions have to take a backseat to the tangible issues. Which spouse will stay in the family home? Who will be paying the bills? And who will support whom, and for how long? If one or both of you isn’t sufficiently in control of your anger or your sadness, maintaining focus on the issues may be too difficult. For some, keeping emotional issues off the mediation table is impossible.

“A critical component of mediation,” says Maggie Hall, a mediator who has a private practice in Burlington, “is for a couple to meet one-on-one with their mediator before the mediation process begins to establish each person’s issues.” This helps a mediator ascertain what stage you and your spouse are at in your relationship and your emotions. It also helps you decide if you’re ready for mediation, or if you need marriage counselling or therapy first. “A lot of people going through mediation are in denial that their relationship is ending,” Hall says. “Emotional issues may inhibit their ability to mediate at that time.”

For most people, emotion is part of the mediation process, and if they’re in denial that their relationship is ending, “it’s very difficult to mediate,” Hall says. Many people are angry about their situation and become emotional during the mediation process. “If the anger is manageable and identifiable, mediation can work,” she says.

“You vs. me”

The process of divorce is one of the most difficult times in a person’s life, and finding the energy to work towards a mutually cooperative agreement is sometimes impossible. A legal solution, worked out between a judge and lawyers, may seem an easier course of action.

Mediation avoids the “you vs. me” polarization of the court system because the divorce agreement is worked out and mutually agreed upon by both spouses, who are working from the same side of the table rather than opposing sides of the courtroom. “Mediation is more solution-focused and future-oriented,” says Sinclair.

Mediation is not intended to bring you and your spouse back together. The process of mediation helps draw up a blueprint for living apart; the mediator’s job is to help each of you get on with your lives as separate individuals.

In many cases, one spouse is dominant and the other passive. A good mediator will be aware of power imbalances and can compensate for them, evening out the weight of power on each side and promoting discussion. “A crucial attribute to a good mediator is being able to handle the intensity of people’s emotions and not get intimidated themselves,” says Gary Direnfeld, executive director of Interactive Consultants in Dundas, ON.

Mediation is generally not an option in cases where there’s a history of child or spousal abuse. According to Direnfeld, the abusive spouse may have intimated his or her spouse into mediation, and the abused spouse may fear recriminations or reprisal after the process ends. To evaluate a couple’s situation, a mediator should ask: “Are you here on your own free will?” or “Has there been hitting or hurting in your marriage?”

“It’s difficult to do a joint interview if there’s abuse,” says Direnfeld, because the abused spouse obviously can’t speak freely. That’s why one-on-one sessions offer more freedom and more information than joint interviews. There are cases where “shuttle mediation” can be useful, according to Sinclair. The mediator could work with both spouses at different times, or they could sit in two different rooms at the mediator’s office, and the mediator could walk back and forth, communicating with each spouse individually.

Benefits of Mediation

Mediation can have a number of unforeseen positive benefits, including:

• It costs less than going through a lengthy divorce trial. Once a mediation agreement has been reached, the final contract must still be approved in court. However, because the agreement has already been approved by both parties, the length of time spent in the legal system is lessened, and therefore legal fees are lessened, too.
• Because the mediated agreement has been created to suit your family’s needs, you may find it easier to accept and respect than one that has been dictated to you by a judge.
• Mediation often teaches couples new communication techniques that can help them to avoid future difficulties. These new skills are particularly valuable when children are involved: successful co-parenting requires open lines of communication. “A couple stops being married,” Direnfeld says, “but they’re Mom and Dad forever.”
• As time goes by, your situation may change. Should you need to change the contract, you already have an established framework for communication in place.
• More can come from mediation than just a divorce agreement. “Sometimes people work out really creative solutions in mediation,” Ryan says. “Courts are more limited by statute laws, but I know people who have gone far beyond that and are more generous than legally required.”

With mediation, the rewards — monetary, emotional, and psychological — can often outweigh the time, effort, and concessions necessary to make an agreement possible. If your hope is to find a peaceful future with your soon-to-be-ex spouse, the trick is finding a mediation solution that works for you.

Finding a mediator

Don’t look for a mediator in the Yellow Pages if you can possibly avoid it. Since it’s an unregulated field of expertise, people who call themselves “mediators” can have widely different levels of formal training, experience, and expertise.

In Canada, a good place to begin your search is Family Mediation Canada (FMC). They’re in the process of changing the way mediation accreditation is handled in this country by setting up standards for certification. “Even in highly regulated fields, such as law or medicine, you can still encounter a bad apple,” warns Paul Young, executive director of FMC. “We’re trying to help separate the wheat from the chaff by basing our certification standards on ethics, training, and a performance-based test.”

Another place to look is the family court system: many courts provide mediation services to help families resolve custody and visitation disputes. Mediators also work in private practice. Your lawyer may be able to recommend a mediator, as can friends, family, or co-workers who have used mediation. “Being a skilled mediator is something apart from the education a person may have,” notes Silja Seppi, a mediator and lawyer at the Southwestern Ontario Dispute Management Centre. “Find someone who listens, and who can adapt. Rigidity gets in the way of resolving a debate: if they’re rigid, then you’ll want to look elsewhere.”

Before you settle on a mediator, be prepared to ask questions, such as:

1. Does the mediator belong to any professional organizations for mediators — such as FMC, or the American equivalents: the Academy of Family Mediators (AFM) or the Association of Family and Conciliation Courts (AFCC)?
2. What kind of training has the person had in mediation? A skilled mediator should have a good working knowledge of family law, psychology, and negotiation techniques.
3. How long has the person been a mediator?
4. What kinds of mediation does he or she handle? Some handle custody and access, some handle financial issues, some handle both. The mediator will also suggest additional professional advice if appropriate in your situation.
5. How much will it cost? Don’t be afraid to ask this question. You’ll probably be quoted an hourly rate for the mediator’s time, and told when payment is expected. You have a right to know this information before you start.
6. How long will it take? The mediator can give you a rough idea, based on the kinds of issues to be mediated. It’s flexible though, and depends on your needs.

Are you a good candidate for mediation?

You may be an ideal candidate for mediation. Here’s a short checklist to find out.
Positive signs:

• Are you in control of your emotions?
• Are you and your spouse on speaking terms?
• Are you willing to take responsibility for creating and honouring your separation agreement?

Negative signs:

• Is there a history of physical or mental abuse to yourself or your children?
• Is there a significant power or financial imbalance in your marriage?
• Are you interested in a fair and peaceful solution, or would you rather just nail that rotten so- and-so to the wall?

When mediation works

Here’s a case where the mediation process helped both parties accept their separation and move forward in their lives. Beth and John separated after four years of marriage, some time after the birth of their only child. John had no idea the marriage was in trouble and was still in “separation shock” at their first appointment with the mediator. He had always viewed his role in the marriage as that of the stoic father: to John, being a “good husband” meant working hard to pay the family’s expenses. Most of the care of their new daughter was left to Beth, who felt ignored by John. Besides, she’d met someone in her weekly finance class who paid attention to her and made her feel “special” again.

Because she had been thinking about divorce for some time, Beth was much more prepared to deal with the issues of the separation agreement than John. His emotional state was like a ship lost at sea — from depression to hostility, anxiety to denial — while Beth was ready to face mediation and move on with her life.

When the mediation process began, the two were very much in opposing corners. Through the mediation process, and with the help of an outside therapist, John came to realize his marriage was over and nothing he could say or do would bring Beth back to him. Initially, John felt betrayed: he thought he had fulfilled his role as a husband, and mediation gave him a chance to voice these views. This chance to “work through” his thoughts and feelings about his separation from Beth — to speak his mind and express some of his emotions — was very therapeutic. Beth realized John had tried to be a good father and husband, but this realization wasn’t enough to save their marriage. In the end, he and Beth parted on amicable terms, agreeing to let John see their daughter on weekends.

Mediation was particularly effective for Beth and John because it offered each of them the opportunity to understand the other’s perspective. Counselling could not salvage their marriage, but mediation has shown them how to live peaceful lives apart.