What is mediation?
Some of the most important mediation principles are these:
Mediation is a voluntary process. No one can be constraint to participate in mediation.
All oral and written information shared in mediation is confidential and cannot be used in legal proceedings. The mediator cannot be called to bear witness in court.
The mediator is neutral and will not advise or make decisions for the participants. In separations or successions or in any situation where decisions entail financial consequences, it is in the best interest of participants to seek legal advice early. This will help participants to better understand and appreciate the fairness of any proposal made by the other/s participant/s.
For spouses, parents and their teenage or adult children, for brothers and sisters or for grandparents, aunts, uncles, step-parents, godparents intending to connect with their grandchildren, nieces and nephews, step- or godchildren, who would like to communicate better.
Mediation reopens the dialogue. In conflict, we tend to stick to our guns, protect ourselves and shift all blame on the other. Depleted empathy reserves obscure our contribution to the interaction that generates conflict. As mediator, I do suggest ressources to improve communication. But the main gain for the participants relies in the experience of a different and more profound dialogue, one that departs from reaction and unveils more vulnerable emotions and needs. At first, I mediate this dialogue, but the goal is to model communication that the participants are able to pursue on their own.
Duration and cost
Mediation is cost-effective: in general, 3 to 5 sessions are necessary to reach an agreement when participants are well informed of their options (by seeking legal and tax advice). Mediation is a process and with any process, regularity is key. Once you decide to start mediation, meeting in weekly or bi-monthly sessions builds the dialogue up and works towards finding an agreement much better than holding emergency meetings.
A mediation session
The mediator listens to the participants and ensures that their interests are heard, while encouraging creative solutions. In the first session, I usually introduce my approach and the Agreement to Mediate (Protocole de médiation). This is a document about one or two pages long. It includes the participants' names, the topics that they wish to discuss, the principles of mediation, the role of the mediator, the conduct in mediation and the mediator's fees. The Agreement to Mediate is signed by the participants and the mediator.
The Mediation Accord
Let's look closer at a mediation accord concerning minor children. It would include the type of child residency parents choose (shared residence or primary residence with one parent and secondary with the other), where the child will live during school term and school holidays, what extracurricular activities the child will attend, who will be responsible for transportation between residences and activities, how information about school reports and medical concerns will be shared, how to consult each other about a parenting decision, how to spend family events and religious festivals etc. In all cases, parents will continue to take together the important decisions regarding a child's health, upbringing, education, leisure activities or the child's religion even if they decide to separate.
This mediation accord can also include other topics such as the child's travel abroad, child support, and parental participation in the child's extraordinary expenses. Since the mediator cannot give advice to participants and given that financial provisions in the accord have tax consequences, participants are strongly encouraged to seek legal, tax or accounting advice before the signature of the final accord. Mediation ensures that the interests of all parties are respected and encourages creative solutions.
A mediation accord concerning minor children concluded in the presence of a family mediator accredited by the Federal Mediation Commission can in principle be declared authentic and enforceable by the Family Court. Its content will not be called into question unless it is contrary to the interest of the child.
One or the other participants on their own, the participants together or their counsels may seek approval of a mediation accord concerning a separation or minor children from the Family Court in order to give it the strength of a judgement. In certain situations, such as divorce, parties' counsels or their notary convert the terms of the mediation accord into a form acceptable to the court.
Mediation accords are the sum of participants' decisions and thus are expected to be implemented and function smoothly. In the event that one party does not observe a court approved mediation accord, it still retains the strength of a judgement and it is enforceable. Participants can return in mediation to adapt or change provisions, e.g. as children get older and their needs change or parents' circumstances change.