Norman Pickell - Outline of Family Mediation Procedure

As done by Norman Pickell, a family mediator based in Goderich, Ontario.

As a general outline, my family mediation procedure is as follows:

Intake Call:

someone phones my office (one of the Parties, or it could be one of their lawyers)

my Assistant asks some questions and completes an Initial Intake Form

basic background information including:

names, addresses, phone numbers of Parties

names, addresses, phone numbers of their lawyers

are there children

general idea of issues to be mediated

preliminary screening for abuse

I look at the completed Initial Intake Form

assuming that I feel that mediation would be appropriate

Information Package is provided to each of the Parties

each Party is requested to complete a Client Questionnaire and return

Encourage Parties to have Lawyers (if they don't already):

if one or both of the Parties does not have a lawyer, I encourage her/him to have one

separate lawyers are needed by each Party for several reasons, including:

each Party must complete and give to the other Party full financial disclosure

usually the best form for this to take is a sworn Financial Statement (the same form that is completed for Court purposes)

the lawyers need to help their clients complete that form

the Parties need to swear that the information is true

each Party must be satisfied with the financial disclosure

I, as the Mediator, do NOT make that decision

each Party needs to have independent legal advice from his/her own lawyer

each Party needs to be fully aware of what her/his legal rights are before they can reach an agreement on the issues

even though I am a lawyer, I do NOT provide any legal advice to either of the Parties to the mediation

I, as Mediator, will NOT be asserting or protecting the legal rights of any of the Parties

if both Parties have their own lawyers from the beginning, it is usually much easier to finalize an agreement

mediation is a team effort

in addition to your lawyers, this team may consist of persons such as accountants, real estate appraisers and pension valuators

if an agreement is reached by the Parties, but one or both of them does not have a lawyer, the Court may be less likely to enforce the agreement if one of the Parties breaches the agreement in the future

Arrange for Payment of Retainer:

I have a Retainer Contract that needs to be reviewed with each Party

I can provide a draft of it to the Parties or their lawyers in advance

I charge for my time by the hour

the Parties are billed for all of my time, including time spent preparing for mediation sessions, talking to (or otherwise dealing with) the Parties' lawyers and other persons, and drafting a Memorandum of Understanding

I usually require a deposit of an amount equal to 6 or 8 hours of my time plus G.S.T. before I do anything further

as that deposit gets used, I will ask for a further deposit

the amount of this further deposit will depend on an estimate of the amount of time required to compete the mediation

usually each Party pays one-half of the cost of the Mediator's time and disbursements (sometimes there are exceptions)

each Party is responsible for paying for her/his own lawyer

Initial Meeting with Both Lawyers:

allow 1 - 2 hours for this initial meeting with the lawyers

this meeting takes place in the absence of the Parties

it is usually held in my office, or some other neutral territory

Agenda for this Meeting:

make sure mediation is appropriate

clarify issues to be mediated

clarify the Retainer Contract

obtain summary of the relevant history of the case

obtain copies of relevant documents

make sure each lawyer is satisfied with the financial disclosure received from the other side

explain the mediation process

1^st Joint Meeting with Parties:

allow 2 hours for this meeting

explain the Mediator's role as an objective, impartial professional between the Parties

talk about the mediation process

assist the Parties to identify the issues

go over the Retainer Contract and have the Parties sign it

get Releases signed for information from school, family doctor, etc.

start getting into the marital history of the Parties (if time permits)

observe and try to improve the communication between the Parties

Meet with Each Party Individually:

lengthy meeting

obtain relevant personal history

screen (again) for abuse and control

explore each Party's needs, interests and concerns

2^nd Joint Meeting with Parties:

it is usually necessary to have a 2^nd joint meeting with the Parties

allow 2 hours for this meeting

finish getting the marital history (if unable to be done in the 1^st Joint Meeting)

deal with urgent issues

if children are involved, begin Parenting Plan

if children are not involved, begin dealing with the other issues to be mediated

Meet with Children:

only needed if there are custody/access/parenting issues and children are 4 years +

I believe it is important for the Mediator to interview children if they are 4 years +

Reasons for the Mediator Interviewing Children:

Children are the most affected by the separation and divorce, and therefore should have some voice in the proceeding.

Children have a unique perspective on the marriage and the separation. This perspective may help to remove any impasse between the parents.

Adults are often caught up in their own pain and anxiety, and are not able to focus on their child's concerns, separate from their own.

The Mediator's role is not to decide, but to assist the parents to focus on the children as individuals separate and apart from the parents.

Even in cases where parents have reached agreement on a parenting plan, it is important to understand each child's perspective and give the child a chance to be heard by an impartial adult.

Children are experts about their own situation. They can give information that may have been overlooked by their parents. (This does not mean children decide something. But they can give input. ie. separate out the "parent business" from the "kid business.")

Some children want to talk to the Mediator.

Some children have strong preferences. These strong preferences should not be ignored. Find out what is behind these strong preferences. The adults won't necessarily go along with the preferences. But if the child is older, the child can decide with her/his feet!

Helps to reduce stress for children caused by the separation. The interview can have quite an impact on the children - and can be very helpful.

10.

Including the children gives them some sense of input of limited control when their lives feel totally out of control!

Obtaining Information and Assistance from Relevant Sources:

this can include schools, family doctors, mental health professionals, accountants, property appraisers and pension valuators

10.

3^rd, 4^th, etc. Joint Meetings with Parties:

continue Parenting Plan

once Parenting Plan is completed, then deal with the other issues to be mediated

11.

Possible Caucus or Individual Meetings with Parties:

sometimes it is necessary for me to have further individual meetings with each Party

what is said in these "caucus" or individual meetings is usually kept confidential

there are several reasons why a "caucus" may be of benefit, including:

it can assist in trying to break an impasse between the Parties;

it can help the Mediator obtain some more information in a confidential setting that may be helpful to the mediation process.

12.

Meet with Other Significant Adults:

sometimes it is helpful to the mediation process for me to meet with other significant adults

these other adults could include:

persons who are influential in the decision-making;

persons who will be playing a care taking role with the children;

new partners;

grandparents.

13.

Meet with Both Lawyers from time to time (as needed):

I want to keep in touch with both lawyers from time to time as needed

14.

Memorandum of Understanding:

if Parties reach agreement, I will set out the terms of the agreement in a Memorandum of Understanding

I will review a draft of the Memorandum of Understanding with the Parties at a Joint Meeting

once the Memorandum of Understanding is acceptable to both sides, I will send it to the lawyers for the Parties for them to review with their clients

if the Memorandum of Understanding is acceptable to everyone, because I am a lawyer and because I will have the Memorandum of Understanding on my computer, I can easily incorporate the Memorandum of Understanding (together with any changes agreed upon by the Parties) into a Separation Agreement

I then forward the Separation Agreement to both lawyers for review and signing by their clients

Total Time for Mediation

It is difficult to say in advance how many hours will be required to complete all of the above steps in a particular mediation. Every mediation is different. The time required to complete the mediation from start to finish will depend on a number of factors, including:

the number of issues to be mediated;

the types of issues;

the complexity of the situation;

the number of adults involved;

the number of children involved;

the willingness of the Parties to reach a voluntary agreement.

Flexible Process:

Because mediation is a flexible process, I make changes to the above procedure in individual family mediation cases when I feel that it is in the best interests of a particular file to do so.

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