What Does Mediation Mean in A Divorce?

In Canada, the divorce rate is currently around 40%. While this represents a decrease from previous decades, it is still a significant number. The human side of divorce – the side that affects people’s emotions and mental health – can be heartbreaking, not only for the divorcing couple, but for their children. Homes have to be uprooted, lives have to be rebuilt, new relationships have to be sought out.

As if that is not stressful enough, the divorcing couple has to deal with a mountain of logistical issues. Who is going to live in the marital home? How will child custody work? How will assets such as bank accounts and investments be divided?

Mediation is a process whereby all of these questions are resolved. The couple meets with a professional mediator, and together they hash out the details of what their post-divorce lives will look like. Settling a divorce through mediation is less costly, less time consuming, and less traumatic than going through a court.

How Does Mediation Work?

The goal of divorce mediation is to come up with terms and conditions that (a) are legally binding and (b) both parties are happy with. To satisfy the first requirement, each party should have their own legal counsel. In the event of a dispute at some point in the future, a judge could overturn or alter the terms of the mediated agreement if it comes to light that one or both parties did not receive independent legal advice.

What this means is that the mediation will involve the two people who are getting divorce, legal counsel for each of them, and a professional mediator. The lawyers are not necessarily required to attend all of the mediation sessions – their primary role is to review the agreement to ensure that it is fair and in the best interests of their clients. The mediation process can take several forms, including the following:

• A series of in-person meetings with all party’s present
• A series of Zoom (or similar) meetings with all parties present in virtual form, followed by an in-person meeting when it’s time to gather signatures
• A series of meetings in which the divorcing couple are in separate rooms, with the mediator going back and forth between rooms
• A digital version of the above, where the mediator meets with each party in separate Zoom sessions

What Is Discussed at Mediation Sessions?

Mediation begins with information gathering. The mediator needs to know as much as possible about the divorcing couple: how long they’ve been married, whether there is a prenuptial agreement in place, whether there are any children or pets, what assets the couple has either jointly or individually and which of those assets predated the marriage, whose name is on the deed or lease of the home they live in, and so on.

Over a series of meetings – the number and duration depends on the complexity of the case – the couple will come to agreements about anything pertaining to the divorce. Examples include the following:

• How Child Custody and Coparenting Will Work. Will the child live primarily with one parent, or will there be a 50/50 split? Who will have access to the child’s school and medical records? Will both parents have equal power to give consent for medical procedures, and what will happen in the event of a disagreement? Whose medical insurance will cover the child? Will the non-custodial parent be allowed to pick the child up from school?
• Whether There Bill Be Child Support Payments. This is highly sensitive to the details of the case, and it’s different for everyone. If there is a large income discrepancy between the parties, the higher earner is likely to be required to provide child support payments to the lower earner. If custody is shared equally and each person has similar income, there may not be any child support requirements. But what happens if one person loses their job or suffers a drop in income? The couple also has to agree on the duration of child support. Will it be until the child turns 18 or will it continue while the child is at college or university?
• What Will Happen to The Marital Home? One of the biggest property-related decisions in the event of a divorce is where each person will live. If the couple owns the home jointly, will it be sold, or will one person pay out their share to the other? If they rent, which one of them, if any, will continue to live there? If the home is owned solely by one of the parties, was it acquired before or after the marriage, and are there any implications when it comes to a prenuptial agreement?
• The Division of Assets. This depends on several factors, such as whether bank accounts were held separately or jointly, which assets came before the marriage and which were accumulated during the marriage, and whether one party is required to pay a settlement to the other.
• Whether There Will Be Alimony Payments. Many married couples have an agreement that one will work while the other stays home to take care of the children. In the event of a divorce, the stay-at-home parent could find themselves without an income or the ability to enter the workforce. In this case, the working parent is likely to be required to pay alimony, or spousal support. The duration of alimony depends on the agreement: will it be for a set period or time, or will it continue until the person gets a job or gets married to someone else?
• Other Items. The couple will have to agree on how furniture and household items will be divided, who gets the family car, whether the family cell phone plan will be continued, who will get custody of the dog, and so on. All of these items can be discussed at mediation.

Reduce Divorce Stress with Separate Simply

At Separate Simply, we recognize that divorcing couples already have a lot to deal with. Splitting up with someone you planned to share your life with can be traumatic and heartbreaking. By facilitating divorce mediations, we do what we can to make this process less stressful for both parties and their children. Our goal is for the couple to be able to move forward with their lives in a way that benefits them both. Contact us for more information.