Family Mediation

The mediation process can include parties meeting with the Mediator on their own (i.e., without their lawyers present at the mediation) or the parties and their lawyers meeting with the Mediator. The Mediator is a neutral third party who facilitates and controls the discussions between the parties or the parties and their lawyers if lawyers are present.

The Process

Generally, there are two types of mediation:

One type of mediation is where parties attend the mediation without their lawyers present. This type of mediation is referred to as “Party Only Mediation” or “3 Way Mediation” because the parties and the Mediator are present in the mediation. Clients are free to consult their lawyers before starting the mediation process, during or between mediation sessions, and before signing a legally binding agreement.

Another type of mediation is where the parties’ lawyers are present at the mediation. This type of mediation is referred to as “Lawyer Assisted Mediation” or “5 Way Mediation” because the parties and their lawyers are present.

In the context of family mediation some or all of the following issues generally require resolution:

Parenting

Parenting Schedule

Parenting Decisions

Child Support

Children’s Expenses

Spousal Support

Division of Assets

Payment of Debts

Matrimonial Home

Division of Household Belongings

Businesses

Employment Benefits and Pensions

Health and Dental Benefits

Life Insurance

Income Tax Issues

Closed Mediation

At Ruppert McCarthy we practice closed mediation. Closed mediation means what is said and offers exchanged in the mediation are confidential and cannot be used in another proceeding. Closed mediation encourages an open, more candid communication style between parties.

Suitability and Readiness for Mediation

Mediation is not suitable in all circumstances.

Heidi and Terry are knowledgeable about family law in Ontario. For mediations without lawyers present (Party Only or 3 Way Mediations) each party will have a confidential pre-mediation intake meeting prior to the first joint mediation session. Some of the goals of the pre-mediation meeting are for the Intake Mediator to assess whether mediation is suitable, assess the client’s readiness to mediate, and prepare the client to mediate. Mediators can give parties a general overview of the law and how it generally applies to the issues in dispute. Mediators cannot give parties individual or independent legal advice nor will they impose a decision upon the parties.

The Mediator’s Role

The Mediator acts as an independent, neutral third party who has no decision making power. The Mediator’s primary function in the process is to promote constructive discussion between the parties and to assist them in generating workable options to resolve their issues.

Heidi and Terry understand and are knowledgeable about the law. he Mediator may give parties a neutral a general overview of the law and how it may apply to matters to be resolved. They will not give the parties legal advice or impose a decision upon them.

The Mediator will help the parties identify issues and concerns and prioritize them within a manageable agenda.

The Mediator will assist the parties in identifying and obtaining relevant information and documentation. The Mediator will ensure that the process works fairly for both parties and that each party is able to express his or her needs and interests. It is normal for parties to be at different places in their acceptance of the separation. The Mediator will control the pace of the mediation to ensure that it is suitable for both parties.

It is common that parties to the mediation have unequal negotiation or bargaining skills. The Mediator will ensure that the party with less skill in a particular area is able to participate fully and not be overwhelmed by the more skilled party. If the Mediator believes the process can’t operate fairly for both parties, the mediator will end the mediation process.

The Mediator acts as a conflict manager to ensure that the mediation process is civil, respectful and constructive.

The Mediator will generally provide a written summary after each session and may provide a list of tasks for the parties to complete before the next session. This will keep the process moving and will reduce time and costs.

Where parties reach agreement, the Mediator will prepare a draft agreement for review by the parties and their lawyers. The Mediator will also prepare an electronic financial disclosure package which contains all of the relevant financial documents. The electronic financial disclosure package is provided to the clients and to their lawyers.

The Parties' Role

Parties should come prepared to work hard, compromise, negotiate and settle issues. Parties must be prepared to accept that their common law relationship/marriage has come to an end and that a written agreement should be put in place to clearly set out rights and obligations.

Before the mediation, parties should consider what is important to them and what may be important to the other party. As well, parties should consider solutions that meet their interests and the interests of the other party.

Parties must be prepared to listen to what the other is saying and to make full and open financial disclosure.

The Lawyers’ Role

Agreements reviewed by lawyers knowledgeable in family law is an important step in making sure the agreement protects the parties’ legal rights. As well, parties who have received independent legal advice before signing the agreement can expect the agreement will more likely withstand any subsequent challenge to its validity if such occurs. While it is not necessary to have independent legal advice for a written, signed and witnessed agreement to be legally binding, it is recommended that parties consult a lawyer before signing any final agreement.

Some parties may wish to consult with their lawyers only before they sign an agreement while others may prefer to consult with their lawyers before and during the mediation process. For those clients who do not have lawyers, the Mediator, can recommend lawyers who practice family law and who will support the client in the mediation process.

Party Only Mediation (Where lawyers do not attend the mediation)

This section is primarily relevant to parties who wish to attend mediation without their lawyers present at the mediation.

Setting up the Process

Parties contact Heidi Ruppert (hruppert@ruppertmccarthy.com) by email to request mediation. Heidi will send the requesting party an intake email including intake documents. Completed intake documents should be sent to Heidi Ruppert by e-mail and once Heidi receives both parties’ completed intake documents, she will send dates for the first joint mediation session. Once the first joint mediation session is booked the confidential, individual pre-mediation meetings will be booked in advance of the first joint mediation session.

Individual pre-mediation meetings are generally 1.0 to 1.5 hours in length and joint mediation sessions are generally 3.0 hours in length. Times may vary as required and will be arranged on scheduling.

Click Here to go to Intake Documents.

Individual Pre-Mediation Meeting

The individual Pre-Mediation meeting will take place by video conference (ZOOM).

Depending on circumstances, the pre-mediation meeting will take place at least two weeks before the first joint mediation session. Generally, Terry is the Intake Mediator. The Pre-Mediation meeting provides an opportunity for the client to speak privately and confidentially in a relaxed manner before the first joint mediation session.

During the individual Pre-Mediation Meeting, the Intake Mediator will explain the mediation process, determine the readiness of the party to mediate and explain the Agreement to Mediate. The party will also have an opportunity to give the Intake Mediator his or her perspective on the issues and raise any concerns he or she may have.

The Intake Mediator will assist the party in preparing for the first joint mediation session by identifying relevant financial information that must be obtained and coaching him or her so that they are effective in participating in the joint mediation session(s).

Individual Pre-Mediation meetings are confidential.

The Joint Mediation Session

A typical joint mediation session will include the following steps:

The Mediator will briefly explain the mediation process in general and what will happen in the immediate session.

The Mediator will assist the parties in having respectful discussions that will enhance opportunities for settlement.

The Mediator will ask each party to identify his or her interests, goals and expectations of the mediation process.

The Mediator will ask each party to briefly set out what they believe to be the outstanding issues for discussion.

The Mediator will help to formulate an agenda and assist the parties in prioritizing their agenda items.

The Mediator will encourage the parties to express all relevant views and concerns in an open, balanced and constructive way. The Mediator will assist a party in expressing his/her views by asking a series of questions.

While a party is expressing their views the Mediator will encourage the other party to listen and seek to understand that person’s perspective.

At any time, either the Mediator or the parties may ask to meet privately with the Mediator (caucus), and if lawyers are present, with his or her lawyer. What is said in caucus is kept confidential unless the parties agree otherwise.

The Mediator helps parties work through all of the necessary financial information and forms.

The Mediator will assist the parties in raising the issues that need to be considered.

After the parties have had an opportunity to fully articulate their own views and concerns and understand the views and concerns of the other party, the Mediator guides the parties in formulating options for resolution.

The Mediator may provide a written summary after each mediation session.

The Mediator helps the parties formulate proposals and negotiate a final agreement.

The Mediator provides a “reality check” on the agreements parties reach.

The Mediator prepares a draft written agreement for review by the parties.

The Mediator reviews the draft agreement with the parties and makes mutually acceptable changes.

The Mediator sends the revised agreement to each party’s individual lawyer together with the electronic financial disclosure package.

The parties make arrangements to review the draft agreement with their lawyers.

The lawyers will meet with the parties. Based on the lawyer’s advice the parties may request changes. The requested changes are communicated to the Mediator by the parties directly or by the party’s lawyer.

If the recommended changes require further discussion, the parties will return to mediation.

The agreement will be revised to the parties’ mutual satisfaction.

A final revised agreement is sent to the lawyers.

The parties sign the agreement with their lawyers in the lawyer’s office or virtually. The lawyers sign the Certificate of Independent Legal Advice, which is attached to the agreement.

Lawyer Attended Mediation

In mediations where lawyers attend the mediation with clients (i.e. Lawyer Assisted Mediations or “5 Way Mediations”) the lawyers’ offices will contact the mediator to coordinate and schedule the mediation session. The mediator will communicate with the lawyers’ offices directly and the lawyers’ offices will send the clients the necessary intake documents, and they will provide the mediator with the necessary financial or other information for the mediation.

Preparing for Mediation

Preparing Mentally

Parties should accept that some level of compromise is required.

Parties should try to be forward looking and, to the extent possible, refrain from revisiting their relationship history.

Parties should be prepared to consider options for settlement that meet their needs as well as the needs of the other party.

Parties need to be able to reasonably manage their emotions and be prepared to separate the people from the issues.

Each party must try to respect the emotions of the other party.

Parties should understand their own “triggers” and what they may do to “trigger” the other party. Parties should be prepared to manage their own triggers and avoid behavior that provokes the other person.

Be prepared to listen to the other party.

Approach the mediation optimistically and with a positive attitude.

The Intake Mediator and Mediator will assist parties in achieving these goals.

Preparing for Financial Mediation

Heidi and Terry use the financial programs and forms used by parties’ lawyers and the court.

It is not necessary for parties to have completed a financial statement with a lawyer in advance of the first mediation session. It is typical and cost effective for parties to work with the mediator to gather and prepare all necessary financial information and statements. (Click here to print a Financial Statement)

Some parties may have completed a financial statement with their lawyers. If so, parties or their lawyers should send the Mediator, in advance of the first mediation session, an electronic copy of the financial statement, as well as the supporting documents.

Parties and/or their lawyers will be provided with an electronic financial disclosure package including all relevant financial information disclosed in the mediation. This package contains the relevant financial documents that will allow parties’ lawyers to provide independent legal advice on financial issues.

Parties and/or their lawyers will be provided with a financial disclosure pckage electronically to manage and organize all relevant financial information. The binder contains all of the relevant financial documents that will allow clients’ lawyers to provide independent legal advice on the financial issues. This reduces the time and cost for lawyers.

Parties should gather and provide the Mediator with the following information and documentation:

Income Documents (gather all that are applicable to you)

Last 3 years’ of income tax returns and notices of assessment, including all “T” slips. If the parties do not have copies of their income tax returns and notices of assessments, they can be obtained through Canada Revenue Agency,

Proof of salary (the last 3 months of paystubs including at least one paystub as current as possible to the mediation date),

Employment contract setting out salary, bonus and other terms of employment,

Collective Agreement, Employee Benefits Handbook,

Copies of corporate tax returns for the last 3 years.

Income Documents if Self Employed or if You Own a Business

Copies of corporate financial statements for the last 3 years,

Income and Profit and Loss Statement and Balance Sheet for the last 3 years,

Written explanation of how the party draws cash from the business, how much, how often, what method (i.e. salary, dividends),

Detail statement of all “expenses” through the business (e.g. car, cell phone, blackberry, part of the home, travel, meals, promotion),

Banking records for the last 3 years,

Credit card statements for the last 3 years,

All savings, holding accounts for the last 3 years.

Documents Concerning Asset and Debt Values

Both parties need to provide the relevant financial documents. For married couples, there are two relevant dates when gathering information: one is the “valuation date” which is the “date of separation” and the other is the day prior to marriage.

The “valuation date” or the “date of separation” in law is the date at which there was no reasonable prospect of reconciliation. The parties do not necessarily have to be living in separate residences to be considered “separated”. If parties have not agreed to a “date of separation” then this will be an issue for discussion in the mediation.

The day prior to marriage is the date to assess what assets and debts each party brought into the marriage. Depending on the length of the marriage it may be difficult to find statements confirming the value of the assets and debts brought into the marriage. Parties should make best efforts to obtain these statements, if applicable.

If possible the parties should provide statements as of the date of separation and for 3 months prior and 3 months following the date of separation. Parties should include any asset or liability which they own in their name alone, together with their spouse or together with someone other than their spouse. Each party will be required to provide statements confirming the value of their assets and debts on the date of separation and the date of marriage, if applicable. The following are examples of possible assets and debts:

Assets

Bank statements for any bank accounts,

RRSP statements,

Statements of non registered investments (e.g. mutual funds, GIC’s, TBills),

Stocks, bonds, stock options,

Value for the primary residence (matrimonial home). The party may wish to obtain one or two opinions from real estate agents as to the value of the home. The parties should obtain this value jointly with their spouse. If the home is jointly owned obtain a current value as well as a value for the date of separation,

Value for all other real estate including time shares. Again, the party may wish to obtain one or two opinions on value of real estate from real estate agents,

The most recent statement showing pension benefits. If a party’s pension is a “defined benefit pension plan” the party will need to obtain a Family Law Valuation for their pension,

Cash surrender values for whole life insurance policies,

Written statement (e-mail is acceptable) from the party’s employer confirming the value of any unpaid leave, severance or termination pay,

List of jewelry and appraisals if any,

List of major tools and estimated resale value,

List of vehicles (cars, recreation vehicles). The parties may wish to consider getting a letter from the dealer confirming value or by checking on line at www.autotrader.ca to obtain an approximate value,

Air Miles or any reward points,

Copies of Net Worth statements the party may have provided to any bank in the last 3 years

Debts

Most recent mortgage statement,

Credit card statements,

Lines of Credit,

Personal loans.

Other Important Papers

Marriage license or marriage certificate,

Copies of any court papers, court orders, separation agreements, pre-nuptial agreements,

Anything else you may feel is relevant.

Preparing for Parent Mediation

The Mediator will assist parties to work through all necessary parenting considerations. In advance of the mediation, the parties should consider the following:

How will decisions be made concerning the children, relating to the following:

Day to day decisions,

Significant decisions (such as education, health, religion, religious upbringing),

Emergency decisions (such as in a medical emergency),

Information sharing,

A process to resolve disagreements.

Where will the children live?

Regular residency schedule,

Weekdays,

Weekends,

Long weekends.

How will parents share the following holidays and special occasions?

School spring break,

Easter,

Father’s Day,

Mother’s Day,

Summer vacation,

Christmas break,

Other Non Christian Religious Holidays,

Child’s birthday,

Parent’s birthday,

Traditional family holidays.

How will changes to the schedule be communicated? Does a parent make up for missed time? And if so, how? What is the involvement of extended family? How will parents exchange information about the children? How will children communicate with one parent while they are in the care of the other parent? Who will look after the children if a parent is not available on his/her regularly scheduled time? Who are the approved caregivers? What arrangements should be made if a parent wants to travel with the children?

Outside of the country,

Travel with children/without children consider providing coordinates.

What if a parent wants to change their residence locally or move the residence of the children?

Who can attend child functions outside the home(e.g. school plays, sporting events)? Can a parent change a child’s name? What happens if one parent dies? If both parents die? How are new partners introduced into the children’s lives?

Required Intake Documents

Both parties must send the Mediator their completed intake documents before the Mediator schedules a date for mediation. The intake documents are:

Confidential Mediation Intake Form

Payment Policy

Agreement to Mediate and

Consent to Online Mediation

Click here for submittable PDF’s of the required intake documents.

Fees and Costs

Mediation Fees

The Intake-Mediation is a flat fee of $275.00 per person, plus HST. The Mediator charges for mediation is $400.00 per hour plus HST. The Mediator charges for:

time spent preparing for mediation sessions,

participating in mediation sessions,

communicating with the parties either jointly or separately in person, by phone, by email, by writing,

communicating with other professionals as necessary (e.g. lawyers, accountants, pension actuaries),

reviewing all documents including emails (received from clients, lawyers or others), financial documents, pre-mediation memos or briefs,

drafting temporary, partial or final agreements.

Parties share the Mediator’s fees equally. Ruppert McCarthy accepts e-transfers directed to hruppert@ruppertmccarthy.com, cheques made payable to Ruppert McCarthy ADR Inc., Visa and MasterCard. Parties are required to pay an advanced deposit to secure their mediation appointments per the Payment Policy. If other professionals are required (such as a pension valuator, business valuator, accountant, etc.) parties pay these professionals directly.

Mediation with Lawyers Present

Mediation with lawyers present are generally booked for a half-day or full-day. Client’s share equally the Mediator’s fees/costs plus HST. In addition, each party is responsible for paying their lawyer directly.

Frequently Asked Questions (FAQs)

What is mediation?

Family mediation is a process in which an independent and neutral third party professional assists the parties in negotiating the outstanding issues between them.

What are the benefits of mediation?

Mediation provides the following benefits:

Generally less costly, both financially and emotionally,

More timely – agreement may be reached more quickly,

No imposed solution or settlement – parties have control over the outcome,

More opportunity to preserve respectful relationships during and after the process,

Less formal,

Private,

Opportunities to discuss what is important to the parties and the family, including non legal issues,

Less stressful,

Comfortable surroundings,

The process can be designed to suit the parties needs (e.g. time frames, when they meet, how long they meet, ability to consult “experts” like accountants, financial planners)

How much does it cost?

This will depend on the number of issues and the willingness of the parties to reach an agreement. Each case has its unique characteristics. All time required by the Mediator for the matter is billed at his or her hourly rate, and this usually is divided between the parties. See Costs/Fees.

Do I need a lawyer?

No, however, while no one can force you to go and see a lawyer, it is in your best interests to consult a lawyer either before or after the first mediation session, before signing the final separation agreement and as often as is necessary in between.

How long does the process generally take?

This depends on the parties, the complexity of the issues, level of conflict and level of agreement or disagreement. Generally, 2 to 4 sessions, approximately 3 hours per session, plus the Mediator’s time to prepare a draft agreement. In addition, if the parties are seeking independent legal advice, the time required to meet with their lawyers and for the lawyers to provide feedback. Generally, mediations with lawyers attending at the mediation are booked for a half day (4 hours) or a full day (4+ hours). Where lawyers attend the mediation and parties settle, often a settlement document is prepared and signed during the mediation.

Can I terminate the mediation process?

Yes, mediation is a voluntary process. Either party or the Mediator may terminate the mediation. If a party wishes to terminate the mediation the Mediator may wish to speak briefly to that party to ensure he or she fully understands the consequences of terminating the mediation.

Do I need to have a good relationship with my spouse in order to mediate?

No. Most communication and relationship problems can be managed in the mediation process. Caucusing (where the Mediator meets one on one with each party separately during the joint mediation session) can help to minimize personality conflicts and power imbalances.

What if I think my spouse is a better negotiator than I am?

In almost every case, one spouse is a better negotiator than the other. However, there are many factors in the mediation process which help to equalize bargaining power. The Mediator is trained to manage an imbalance in negotiating skills.

Do I need to be separated before the mediation starts?

No. Mediators can deal with conflicts in ongoing relationships, where a separation is imminent, or in post-separation situations. Mediation can take place before or after parties physically separate.

Is the agreement I reach with my spouse legally enforceable?

Yes, if your agreement is reduced to writing, dated, signed and witnessed. One of the Mediator’s jobs is to prepare a separation agreement reflecting the parties’ agreement.

How do I set up a mediation appointment?

Contact the Mediators directly:

Heidi Ruppert: Telephone: 613-233-0233 ext 225 E-Mail: hruppert@ruppertmccarthy.com
Terry McCarthy: Telephone: 613-233-0233 ext 224 E-Mail: tmccarthy@ruppertmccarthy.com