Could mediation replace litigation in divorce?

Moose Jaw mediator Clive Tolley says that about 50 percent of his work is with couples seeking divorce or separation. Some of these couples are part of the so-called boomer generation and some are older.

Some contact him on their own, some are referred by their lawyers and some are ordered by the court to seek mediation.

A mediator is not a counsellor or an arbitrator. A mediator does not have to be a lawyer although some lawyers also function as mediators.

In Saskatchewan, accredited mediators are trained through the Alternative Dispute Resolution Institute of Saskatchewan, the ADR Institute of Canada and Conflict Resolution Saskatchewan.

Through these institutes, Tolley is a chartered mediator, the highest professional ranking, with 17 years of experience in mediation.

More information on family/divorce mediation and choosing a mediator can be found on the government of Ontario’s website. Quoting from that website: “It is important that you ask questions to ensure that the mediator is right for your situation. You should be aware that mediators are not regulated.”

Elements to consider in a potential mediator include:

  • type and amount of family mediation training relating to your issues
  • professional background (for example: law, social work, education, psychology)
  • how mediation fees are set and how they can be paid
  • times and dates that mediation sessions can be scheduled

A mediator’s role is to be neutral. Their function is to keep the discussion going and help the parties make their own decisions regarding such issues as division of assets.

What does a mediation look like?

The mediator first meets with each party privately, in person or on the phone, to get a sense of the issues, Tolley says. Then the mediator meets the couple together in a neutral place.

“I’m trained to help them talk to each other, and work their way through the decisions they’re facing,” he says. “The way I help is by helping them talk to each other about what the important things are.”

If succession planning is involved, a mediation might include input from other family members. Independent, unbiassed appraisers and realtors might attend to provide the value of land, houses, bins, and machinery.

“The mediator is completely neutral,” Tolley emphasizes. “I capture their decisions and put them in a mediator report and forward that to the lawyers. The lawyers write it into a legal agreement and both parties sign it, in the presence of their lawyers. Both have had independent legal advice.”

While each situation is different, Tolley believes that clients can save a few thousand dollars and considerable stress by using the services of a mediator. Across Western Canada, hourly rates for divorce or separation mediation range from $200 to $440 per hour, per couple.

The number of hours of mediation required will depend on many factors including the number and type of issues to be mediated, amount of conflict between the parties and degree of communication and co-operation between the parties.

“I heard of a situation where a couple sat at the kitchen table with a cup of coffee and said, ‘OK, you get that quarter; I get that quarter. Are you alright with that? We’ll just take it to a lawyer and get him to write it up,’ ” Tolley says.

“That’s one extreme, the other is locking them out of the house and not giving them money for gas. And there’s everything in between.

“I do know if people come through mediation and then just get the lawyers to write the legal document it’s the least expensive path for them. And I would say less stressful on them psychologically and emotionally.”

He emphasizes that all people have the right to independent legal advice.

However, the tool isn’t just useful when a couple divorces; it can also be used for succession planning on the farm

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