ISSUES FOR MEDIATION
Mediating parenting issues
For most couples who have children, the parenting arrangements are the most important areas of both the mediation and the written agreement. Even though they are separating, the parties will be parents together forever. It is time to reshape their relationship so they can live separate lives, and at the same time effectively co-parent their children, attend their children's birthdays, graduations, weddings and other family celebrations together. The list of issues to be addressed is endless: from custody and residence to access and child support, from parental communication to not discussing the financial settlement in front of the children, from how to exchange children’s possessions for access visits to consent to travel out of the country, from moving the children’s residence to the relationships with parents’ new partners.
Since parties who have children have no option to end their relationship once and for all, avoiding escalation of conflict and ensuring the ongoing communication to address the parenting issues is of particular importance, which is why mediation is especially well suited for separating parents.
Financial issues in family mediation involve property equalization, child support and spousal support. In some situations they can be very complicated. As a lawyer practicing family law, I work closely with lawyers and parties to successfully settle challenging financial disputes. It is not unusual that both parties and their lawyers attend mediation sessions. At the very least, we encourage the parties to consult with their lawyers both during the mediation, and before reaching the final settlement.
Full financial disclosure must be provided by both parties when mediating financial issues. The law in Ontario requires full disclosure of financial information in order to enter into a binding separation agreement.
In mediation, parties have an opportunity to prioritize their issues. The mediator may explain the law applicable to their issues and help them focus on the things a judge would take into consideration before making a decision. It is usually useful, as it helps the parties see things within the legal framework. The mediator cannot give legal advice to any of the parties.
The parties are free to come up with their own solutions. However, if the mediator believes that the settlement that the parties are seeking is drastically unfair to one or the other party, the mediator will tell the parties. If at any time the mediator feels that either party needs legal advice, the mediator will say so. It is especially applicable in situations where there is more than one settlement option on the table, and the parties need help weighing the pros and cons of all options.
In many cases, separating couples have to negotiate both parenting and financial issues. The fact that they are often interconnected makes them even more difficult to resolve. My background as a mental health professional, as well as my legal training, place me in a unique and ideal position to help the parties resolve all of their financial and parenting issues, efficiently and without feeling vulnerable, at the same time with the same mediator.
Examples of issues to be resolved in mediation
1. Determine what property has to be equalized.
2. Do the parties agree on the value? If not, how is the property to be valued?
3. Considerations about what will happen with the matrimonial home.
4. How will you divide the household contents?
5. Are there pensions to be valued? If so, start the valuation process with your lawyer.
6. Were there any assets or debts before the marriage?
7. Was there an inheritance during the marriage for either spouse?
8. Debts during the marriage.
9. What happens to businesses owned by the spouses together or separately?
II. Spousal support
1. Is spousal support a consideration? For how much and for how long?
2. What are the tax implications of spousal support?
3. What will trigger a change or end to spousal support?
III. Child support
1. Is child support an issue?
2. Will there be a cost-of-living index?
3. What amount of child support is appropriate? What does it cover?
4. What will trigger a change or end to child support?
5. Sharing special expenses.
6. Will there be an education fund?
IV. Medical/dental expenses
If you have insurance through your employer, many expenses could be covered, but you need to think about coverage for the children, and possibly the other parent, and how this coverage will occur. If there is no medical coverage available through either parent, then you have to consider:
1. Who pays for medical/dental expenses for the children or the other parent?
2. What does the coverage include?
V. Life Insurance
Life insurance is usually in place for most people. Be aware of the type of policy/policies you and your partner have.
1. Will the beneficiary stay the same or change?
2. Who will pay the premiums?
3. Is insurance needed to protect support?
This list is a good starting point, but it is not exhaustive. The mediator and the parties may identify other issues as the mediation process unfolds.