What is Mediation
Mediation involves both spouses hiring an independent and trained person to help them discuss and negotiate the issues in their case. The mediator will work with the spouses individually and together to reach an out of court settlement. They help spouses speak constructively to each other and understand the other’s situation, and will propose ideas and solutions to consider. The process is informal. As well, mediators do not make decisions and cannot force the spouses to agree. Their goal is to achieve compromise.
Mediation has great benefits for a family. Resolving disputes outside of a courtroom tends to be less expensive, less stressful and allows litigants to maintain privacy and control of their family decisions. It only makes sense that spouses want to stay in control of their own lives and parents to stay in control of their children’s lives.
As well, the odds of preserving any sort of civil relationship between parents are slim when they have been through a lengthy, costly and contested court process. Publicly airing dirty laundry, taking extreme positions and forcing extended family members to choose sides can be emotionally damaging for the family.
Mediation also allows for flexibility and creative solutions to problems. The court’s resolutions tend to be very basic with very little detail and there are a limited number of options the court has. The resolution options for families in mediation are endless.
What is Arbitration?
Manitoba’s Arbitration Act allows spouses to hire an independent person to make decisions for them in a faster and less formal manner than going to court. It is like a private trial and the process can be as simple or as complex as the spouses want. Each spouse is given the opportunity to tell his or her side of the story and present their evidence. The Arbitrator will then make a ruling that is binding on both spouses, although it can be appealed to a Judge in certain circumstances.
How Does Mediation/Arbitration Work?
If spouses want to hire Jodi Wyman as Mediator/Arbitrator, the contract they must review and sign will outline in the detail the process, which in summary is:
1. Both spouses hire Jodi to be their mediator/arbitrator.
2. She is a lawyer with twenty years experience in family law but she will not be a lawyer giving advice or representing you or your spouse, now or in the future.
3. You might have a court order or Separation Agreement in place already, or you might not.
4. You will start with mediation. Hopefully, by all working together, in person or by phone or email, she will help your reach your own agreement on the legal issues between you. This can take a matter of weeks, or months.
5. In addition to helping you work out your own settlement, Jodi can provide legal information and guidance, and do legal work for you such as preparing a Separation Agreement.
6. Sometimes you will reach an agreement on most of the issues, but not all of them.
7. If you do not reach an agreement together on all of the issues, you will then turn to arbitration. Arbitration means that after you both tell your stories, explain how you feel about an issue and provide any additional information you think is important, Jodi can make a decision for you. It will be binding on both of you.
8. Depending upon what you want, arbitration can deal with larger issues such as an accounting of family assets and debts or support, or smaller issues such as sharing time with children during school holidays or division of household contents.
9. You both control the process and so at any point, if you both agree, you can terminate the mediation/arbitration process.
The Ground Rules
10. The term of the contract for mediator/arbitrator is for six months or one year.
11. You can each talk to Jodi one-on-one if you like, but no conversations you have with her, one-on-one or together, fall under lawyer/client confidentiality. You are also free to talk directly to each other at any point.
12. Communication is by meetings, phone calls or emails.
13. You can (and should) talk to your own lawyer before and/or during the process of mediation or arbitration to get independent legal advice. You will have to have independent legal advice before signing a Separation Agreement.
14. You will both have to sign an Arbitration Agreement contract, which will have the process fall under the Arbitration Act of Manitoba.
15. Jodi’s decision as an arbitrator cannot include a determination of custody of a child (permanent and substantial changes to the child’s ordinary schedule, moving out of the jurisdiction with one parent or granting decision-making authority). We can however discuss these issues in mediation.
16. For arbitration, a date and time for an informal hearing will be set. It will be at Patersons LLP unless you agree to another location or that Jodi can make a decision in a less formal way.
17. At the arbitration hearing, you can provide written evidence, documents and any paperwork you like. You can also explain your thoughts and your side of the issue on the day of arbitration.
18. You can bring your lawyer to, or talk with a lawyer in advance of, the arbitration day.
19. The decision as arbitrator can only be appealed to a court if there is an error in law (not just if you disagree with the decision).
20. As a mediator or arbitrator, Jodi cannot overrule or change an existing court order or Separation Agreement. If you reach an agreement in mediation to make changes to those documents, we can have your lawyers do that paperwork.
21. The fee is $300 per hour of work done, plus taxes and disbursements. If the task takes less than one hour, you will only be billed for that portion of the hour.
22. The spouses will share the cost of meetings we have together and work done for both of you (such as drafting Separation Agreements or divorce documents), but you will each pay individually for one-on-one time.
23. A retainer of $1,000 from each partner is required before the process begins, and once that is used up, statements of account must be paid within 30 days of receipt.