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27 Jan, Friday
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Montreal Families

Mediators help divorcing couples find a middle ground

Recent statistics show that as many as half of all marriages will end in divorce. For those who have been through a divorce, one message is clear: there is nothing easy or pleasant about splitting up. And when divorcing couples end up fighting their case in court, the costs — both financially and emotionally — can be astronomical. Very few, if any, couples who have fought a bitter divorce case with lawyers and countless days in court feel that they “won.” In fact, many describe the experience as one of the worst of their lives.

However, there is an alternative called mediation, which helps couples work with a trained professional outside of the court system to hammer out a fair divorce deal. Since 1997, both married spouses and cohabitating couples in Quebec can obtain the services of a trained and certified mediator who helps them sort out, in a neutral forum, issues such as child custody, possession of the family home and division of assets.

Mediation emphasizes discussion, collaboration as well as helping couples find creative, workable, satisfactory solutions to disagreements. It avoids an adversarial approach in which each side is out to “win” over the other. Couples come up with solutions to the issues they are facing (for example, handling child custody when both parents work unusual hours or travel frequently). Once these solutions have been agreed on, the mediator writes a report and drafts an agreement that both parties take to their lawyers for review to ensure that it is fair. Finally, the agreement will be submitted to the courts, which will review it again to ensure it meets all legal requirements for things like child support payments.

The motivation behind mediation is to offer couples control and flexibility over decisions that can have a huge impact on them, their future and especially their children. The needs of each person are carefully considered and the final agreement reflects these needs, interests and desires as much as possible.

However, mediators agree that the process is not for every couple. It takes commitment from both parties in a separation to work out a fair deal and to put their children’s needs above their own. Relationships in which abuse occurred or there was a significant imbalance of power (one spouse tried to dominate the other) may not be conducive to mediation.

Wendy and Steve (not their real names) were married for five years and had one child. They decided to separate and tried mediation to come to an agreement over various issues. However, Steve demanded all the family possessions as well as shared custody of their child. Wendy, who was fed up with the marriage and simply wanted it to end, was ready to agree. The mediator pulled her aside, telling her that the agreement they had been working on was imbalanced. The mediator suggested she talk to a lawyer and Wendy eventually decided to proceed to court. In the end, Wendy received a better share of the assets and a more satisfactory custody arrangement for their child.

Although the mediation process did not work, Wendy doesn’t regret participating. “In a roundabout way, mediation did help us realize what we both wanted,“ she says. “Now, five years later, we have a solid friendship.”

Some mediators will cancel sessions if they see abusive tendencies on the part of one or both spouses and will refer them to another mediator. “There was one case where the husband was overwhelmingly offensive to me and to his wife, and I didn’t see any point in continuing towards an agreement,” says Mimi, a Montreal mediator (not her real name). So she referred the couple to another mediator who helped them work out a strategy for negotiating in a more respectful way.

After a dozen years, the mediation system still has some kinks in it. Not all mediators are willing to work for the government’s rate of $95 per one-hour session. Couples can agree to pay a higher rate but then the government does not cover the costs of the sessions.

And, of course, mediation requires that both parties be willing to sit down and work with each other, not always an easy proposition when a couple has decided to separate and each may be feeling a multitude of emotions. The mediator is a neutral party who aims to help both parents get a fair deal. But the effort begins with the spouses who agree to sit down and sort out their issues. As one Montreal mediator says, “It takes two to make a marriage, and it takes two to get a divorce and make sure both parties are fairly treated.”

Mediation resources

Association de médiation familiale du Québec

Justice Quebec

Click on “spousal relationship breakdown” to find a section where you can search for a certified mediator.

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