At Kelly + Kelly Lawyers we pay particular attention to assessing early on how a file is best resolved, whether through negotiations, referrals to custody/access assessors, mediation or arbitration. Proceeding to Family Court is the option of last resort. The different processes we use to solve family law issues are explained below.
Mediation is a voluntary process whereby you and your former partner work with a neutral third party (a mediator) to help you identify, discuss, and resolve issues relating to the breakdown of your relationship. Issues that can be mediated include parenting responsibilities, child support, spousal support, and ownership/division of property.
Mediation can be client-based (meaning only you and your former partner attend with the mediator) or lawyer assisted (meaning with both you, your former partner and each of your lawyers are present during mediation).
A mediator does not make decisions for you. They can give you information about the law but not legal advice. While the mediator will help you arrive at an agreement, in the end you and your former partner make the decisions.
People with a wide variety of backgrounds offer mediation services. Caroline Kelly is a lawyer with 27 years of courtroom experience. She now acts as a mediator on a full range of family law issues. She believes that it is crucial for mediators to have a mastery of the law relating to the issues before them.
Caroline also understands the value of a mediator preparing clear and comprehensive agreements setting out what has been agreed upon during mediation. Domestic contracts that are not properly negotiated or drafted frequently end up being challenged in a courtroom. Caroline understands that clients need to leave the mediation process confident that their settlement agreements comply with the law, will stand the test of time, and will allow them to proceed with a divorce application if they want to do so.
Mediation is not appropriate for everyone. If there has been family violence and there are ongoing safety concerns, it may not be possible for you and your former partner to mediate safely and effectively. Shuttle mediation will then be explored as an alternative. Shuttle mediation is a type of mediation where you and your former partner are not in the same room. The mediator speaks to one person, and then to the other person separately.
With the assistance of technology, Caroline is presently carrying out mediations by videoconference. This allows her to act regardless of whether you and partner are currently living in the same area, whether you are close to her offices, or where public health concerns make it unsafe to conduct mediations in-person.
Steps in Our Family Mediation Process
1. Intake Interviews
Caroline will meet with each mediation participant separately to gather information and determine:
– if the mediation can be conducted safely
– how to structure the process so the mediation can be productive.
These interviews are confidential. They provide an opportunity for you to ask questions about the process and to talk about what is important to you.
2. Signing the Agreement to Mediate
If both of you want to proceed with mediation after your intake interviews with Caroline, she will prepare an agreement to mediate for signing by both parties. This agreement outlines the terms of the mediation. It confirms that the mediation process is a “closed” process. This means that, unless required by law, all communications which occur during the mediation process are confidential and cannot be disclosed to a judge or arbitrator.
Full financial disclosure is an essential part of the mediation process. You will be asked to disclose detailed information about your income, expenses, assets, liabilities and property disposed of in the past two years.
4. Mediation Sessions
Mediation sessions may occur with both of you in a room together or with you in separate rooms. If you are mediating in a room together, Caroline may speak to you separately at times if she believes it will be helpful to the process. The mediation session can be supported by experts providing information which will assist you to make informed decisions on an issue. It is also possible to have a lawyer-assisted mediation session if there is a particularly contentious issue and having your lawyers present will assist you in reaching an agreement. It is very difficult to know how many mediation sessions will be needed for you to work through the issues that your situation creates because it is impacted by the complexity of the issues, the need for information from experts or third parties, and the dynamics between you.
5. Independent Legal Advice
Caroline recommends that parties seek legal advice to ensure they fully understand and appreciate the implications of any agreement reached in mediation. Some people are more comfortable getting advice from a lawyer before they start mediation to have a better understanding of their legal rights, while others seek advice during the mediation process or once an agreement is reached. Caroline can provide legal information during the mediation process, but she cannot provide either person in the mediation with legal advice or a legal opinion.
Once you have reached an agreement on the issues that are addressed in the mediation, Caroline can prepare a written agreement that states in detail what you have agreed to. Caroline recommends that all parties receive legal advice before signing any agreement prepared by her.
If you and your former partner cannot come to an agreement or are only able to agree on certain issues, you may need someone else to make the decision for you.
Arbitration is one way that allows you to have someone else make the decision for you.
In arbitration, you and your former partner choose a neutral person—an arbitrator—to decide the legal issues for you.
Arbitration is a private process and you and your former partner are responsible for paying the arbitrator, as well as your own legal advisers. Arbitration tends to be a more informal process than a court trial.
Caroline Kelly has completed the training required by the Ministry of the Attorney General of Ontario to be a family law arbitrator. She accommodates requests by arbitration clients for early hearing dates. After the arbitration hearing is complete, her written decisions are delivered promptly.
Advantages of a Family Arbitration Process
- Arbitrations are private processes, while Court processes are public.
- Arbitration can happen more quickly than an interim or final Court process. This means you can have a resolution more quickly.
- You choose your arbitrator, but you cannot choose the Judge if you are in a Court process. Before you retain an arbitrator, you can seek recommendations from other people, as well as information about an arbitrator’s experience and qualifications.
- Parties can agree to a process in the arbitration that is less formal than a Court process. Any procedure agreed to must be fair to both parties. You can represent yourself on some, or all, of the issues to be determined by the arbitrator or you can have a lawyer represent you.
- Arbitrations can be less costly than Court processes when they are more stream-lined, even though you share the cost of the arbitrator’s time. You can agree to allow the arbitrator to determine if one party should pay a greater share of the cost of the arbitration where that party has unsuccessfully pursued an issue or has acted in an unreasonable manner which has added cost to the arbitration process.