Using mediation for the finer details avoids court costs
By AdvocateDaily.com Staff
For separating spouses, mediation can provide a non-adversarial approach to resolving issues that courts often don’t handle, says Oakville family lawyer, mediator and arbitrator Cathryn Paul.
“Many couples won’t go to court for what may be considered more minor difficulties, and judges often wouldn’t have the time for some of the smaller details, which can really matter a great deal to the average person,” says Paul, principal of Paul Family Law Professional Corporation. “Mediation is a venue where you can really sort out those issues.”
Mediation provides an atmosphere that allows both parties to find creative ways to resolve differences — outside of the courtroom, she says.
For example, decisions about pets can be a source of major stress for separating spouses — but is an issue not usually included in litigation, and when it is, pets are treated merely as property. So, the person who owned the pet in the first place assumes all responsibility for it.
“In mediation, we could talk about what kind of schedule to follow for the animal, whether it would be with one person one week, and with the other the next, or perhaps the pet would follow the kids,” Paul says. “You might also discuss expenses such as food or vet bills. It’s important to figure that piece out.”
Another issue that can be addressed well in mediation is determining the distribution of house contents.
“For example, if we are dividing household contents, we come up with a process,” Paul tells AdvocateDaily.com, adding it can be as simple taking turns choosing from a defined list of items. “They get to choose what’s important to them, and as long as both people agree to the process at the beginning, they are generally fine with the results.”
While many people often sort out who gets what on their own, it can be very difficult — and often emotionally charged — for others. In mediation, the couple can spend as much time as they need going through possessions, item by item, to determine ownership — from furniture to vehicles.
“The courts tend to look at garage sale value rather than what you paid,” Paul says.
It's also important that parties consider the relative cost of litigation to some of the lower-value items, she says.
“I had one client who spent $15,000 on a motion to find out who got a $7,000 truck," Paul says.
In mediation, parties can discuss the best way to establish values on items and avoid the expense of court. “You need a solution to make sure neither party feels steamrolled,” she says.
Another example is post-separation expenses — couples may want to retroactively adjust how they handle their finances from the time separation takes place, Paul says.
“This can mean getting into the finer details of bank statements, and who spends what on the Visa card,” Paul says. “Not every family wants or needs to do this, but if they do, it makes sense to do it in mediation rather than in court.”
Once again, developing a process is important, Paul says, looking at ways to find a result considered reasonable by both parties. They can determine the rules — what expenses are shared, what are personal, and at what percentage they are divided.
“We can go into far more detail, and it can be fairly time-intensive — something not many judges have the time to do.”
Although the mediation process allows separating spouses to take more time to go through such issues and details, it is often less expensive than court, Paul says, as these sessions can be more focused and efficient than a day in court, and in many cases the parties are able to work through these issues without having their lawyers present for the session, although any resolution is subject to legal advice.