Mediation

Mediation is a voluntary process for resolving disputes, where the parties work with a trained, neutral mediator to negotiate their own solution to the dispute. Janet Whitehead is a trained and accredited family mediator.

Mediation can be an effective tool to assist separating spouses to avoid conflict and to work through a parenting plan or financial issues without having to resort to the court process.  But it can also be an effective tool for working out the details of a cohabitation agreement,  marriage contract, or plan of care for an aging parent.

Mediation works best when both parties are prepared to negotiate, and willing to consider some compromise so they can reach a mutually agreeable outcome. There is no force or coercion involved in mediation. It is a safe process in that there will be no outcome or decision made unless both parties agree.

The mediation process is completely confidential.  As a result, if the parties do not reach an agreement, anything discussed at mediation, including any compromises proposed by a party, cannot be used in any later court proceeding. 

Janet Whitehead is an independent and neutral professional, who is trained and experienced in dispute resolution.  Her role as a mediator is not to judge which party is right or wrong, but to assist in helping the parties communicate with each other, and work towards finding their own solutions.  Janet Whitehead helps identify the interests of each party and their respective goals and priorities, and then works with the parties to identify available options to best meet those respective needs and priorities.

In her role as a mediator, Janet Whitehead cannot provide any legal advice to either party, but will provide legal information through the process as may be required.  Legal advice occurs when a lawyer advises a client on what they “should” or “ought” to do, or expresses an opinion about the likelihood of success if an issue were to go before the court for a determination.  Legal information is simply general information about the law or how it has been applied in the past to other similar situations. Janet Whitehead encourages parties to speak to a lawyer of their choice for legal advice.

Mediation is an effective process for resolving disputes, while minimizing the level of conflict between the parties.  It is generally less expensive than court proceedings, or traditional negotiations. Those involved in mediation maintain control over the outcome, and can custom design a mutually agreeable solution that meets their personal needs.  The parties themselves control the timing of the mediation process and can go as fast or as slow as the parties determine is appropriate to reach a resolution. The process is cost-effective as the parties are working cooperatively to find a solution.

The goal of any mediation is the achievement of a fair and equitable resolution to the dispute. The terms of the resolution can then be incorporated into a written agreement or contract. It is important that the written document is prepared in a way that is clear and complete as to what was actualy agreed on by the parties, so as to avoid any confusion or renewal of the dispute in the future.

In family law matters, for a written agreement to be considered  valid, the law simply requires that the parties sign the document in front of a witness. However, even though an agreement may be valid at law, there is still a possibility that if it is later challenged, a court might set it aside and impose a different outcome.

In order to achieve an agreement which is not only valid but durable and likely to be respected and enforced by the court in the face of a challenge, there should be full financial disclosure exhanged between the parties and each person should obtain independent legal advice. Generally, negotiated settlements include some compromises by each party, which are given in order to gain other benefits. Full financial disclosure provides each party with the factual foundation necessary for him or her to make informed decisions or choices within the negotiation process. Proper independant legal advice will compare any proposed bargain or settlement against what the law might otherwise provide to resolve the dispute. This allows a party to be able to weigh the overall proposal against the best alternative being what the law might otherwise provide, in order to again make an informed decision prior to finanizing the agreement.

Mediation Process

If you choose to retain Janet Whitehead as the mediator of your dispute, the process will be as follows. Each party will meet independently with Janet Whitehead for an intake session.  This session will take approximately 45-60 minutes. The intake is designed to allow each party and Janet Whitehead to get to know one another.  It also allows Janet Whitehead to learn what the interests, concerns and goals are of that person, and to screen for any domestic violence issues or other power imbalances.

The parties and Janet Whitehead will then meet together for pre-arranged mediation sessions.  These sessions will last around 2 hours. As mediation is a flexible process, the sessions will be structured to meet the needs and comfort of both parties.  The sessions can either take place with both parties in the same room, or in separate rooms with Janet Whitehead going back and forth (shuttle mediation). After each session, Janet Whitehead will prepare and circulate a progress note which outlines what was discussed at the mediation session, together with any homework needed before the next session.

The parties are expected to provide any information, including financial information such as income or asset and liability disclosure, which may be necessary for the parties to make informed choices.

Once the parties have reached a consensus about a solution to the dispute, Janet Whitehead will draft a written agreement incorporating her understanding of the consensus. This parties are then encouraged to take this draft agreement, together with the progress notes and any financial disclosure to their respective lawyers to receive advice prior to signing the agreement.  Janet Whitehead will not provide any advice with respect to the draft agreement, nor will she allow the parties to sign the agreement with her.

Mediation - Role of Counsel

Lawyers play a very important role in the mediation process. Ideally, each party should have a consultation with a lawyer prior to commencing mediation.  Such a consultation allows them the opportunity to receive some advice about their situation, and gain an understanding of how the law would apply to the various issues. By doing so, a party can come to a mediation better prepared to discuss the outstanding issues and consider options or solutions.

Lawyers also play an important role in providing further advice to the party either during the course of the mediation, and/or in reviewing and providing advice regarding the contents of any draft agreement before it is finalized.  A lawyer providing independent advice will look at the proposed bargain from that party’s sole perspective, and can ensure that the party fully understands the impact and any future consequences of the agreement.

Can I bring my lawyer to the mediation?
Yes.  Mediations can occur with lawyers for the parties being present.  This can be helpful in that parties then have access to immediate legal advice as they consider options or possible solutions.

What happens in mediation when I bring my lawyer?
Arrangements need to be made in advance with Janet Whitehead, so that she can communicate with the lawyers prior to the scheduled mediation session.  In that way, the mediation session can be structured to accommodate the presence of counsel and ensure that relevant information is exchanged in advance so that the session can be as productive as possible.

Generally, if counsel is involved in the mediation, Janet Whitehead will facilitate the preparation of the written agreement by counsel, if the matter resolves.  This way the parties can finalize the settlement before leaving the mediation.

Mediation/Arbitration

Mediation / Arbitration is a process option available when both parties are represented by lawyers. Mediation/Arbitation is a 2-part process where the parties and their lawyers agree in writing to retain Janet Whitehead in dual roles as both a mediator and an arbitrator.

A mediation session is then scheduled with both parties and their lawyers with Janet Whitehead assisting in the role of mediator to try to find solutions. If this mediation session is successful in resolving all of the issues in dispute, then the process is complete. If at the end of the mediation any issues remain unresolved, a separate arbitration hearing is scheduled for a later date. At the arbitration hearing, the parties and their lawyers present evidence to support their respective positions on the unresolved issues. Janet Whitehead would no longer act as a mediator, but would instead assume the role of an arbitrator. As an arbitrator, Janet Whitehead would review the evidence, listen to the comments from each lawyer and apply the relevant law to make a decision which would be binding on the parties.