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ADR, Family

Mediation allows for creative, flexible agreements

When it comes to making custody and support arrangements, finding a solution through mediation allows for more creativity and flexibility, says Oakville family lawyer Cathryn Paul.

“We can get to know the parties and the families and consider some options that may not arise in the court process,” says Paul, who practises under Cathryn L. Paul, Lawyer, Mediator, Arbitrator.

“In court, things tend to be fairly rushed, and there’s not the atmosphere to solve problems creatively,” Paul tells AdvocateDaily.com.

Through the court process, some family matters are negotiated by way of court conferences, and at other times, through litigation, when a decision is imposed by a judge.

“There’s not a lot of interaction where the judge is pulling out what’s important to each family,” she says. “There’s more posturing of the parties rather than deep-down creative problem-solving.”

In mediation, parents can go back and forth, discussing their needs in terms of a scheduling, what their children like or dislike and how they handle transitions.

Another option for families in mediation is bringing in experts, Paul says.

“We can get experts to meet with the children and come back to the mediation table with the child’s voice,” she says. Input from children can also be part of the court process — through the Office of the Children’s Lawyer, which Paul works for as well — but typically only in high-conflict cases, she says.

“It’s not as simple as, ‘Do you want to live with mommy or daddy?’ It’s not nearly that black and white,” Paul says. The discussion could include asking what life is like at the mother's or father’s house, or what makes them happy or sad.

“That kind of feedback can be very helpful in more complex parenting situations, if there’s a history of conflict or if parents are hearing different things from the child,” she says.

“It’s a question of how do we make things better for the child? And often, by having the child’s voice heard, parents understand there’s something very different going on.”

Experts can also be brought into mediation to determine various financial arrangements, Paul says. For example, financial planners hired on a retainer paid by both parties might help arrange an affordable payment schedule for support.

While full custody arrangements would involve a straight payment of child support from one party to another, such schedules are actually becoming more rare, she says.

“Very often the children are living in shared parenting situations, spending at least 40 per cent of the time with each parent,” Paul says.

Mediation would involve an analysis of needs, means and circumstances of each family and consider whether support should be paid, and if so, how much and by whom. But it’s not a simple analysis, she says.

“You also need to look at things like other expenses for the children, such as snowsuits and activities. Who’s buying them? Are they on alternate years? Many other financial issues can come up, and we have the time and creativity to deal with it in mediation.”

Generally, a family dealing with higher levels of conflict needs more specific agreements, she says.

“Just because people are in mediation doesn’t mean they always get along well,” she says. “It’s really important that you craft the agreement to avoid future disputes.”

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