I offer representation to my clients in the mediation process. The objective of the mediation process is for a neutral person to assist the parties in arriving at their own settlement. It follows that the ultimate decision making is left in the hands of the parties. The neutral person should have formal training as a family law mediator, which is usually confirmed by certification. The mediator must be neutral on all the issues and cannot provide legal advice to either party.
In most cases people attend mediation without lawyers. It follows that each party will need to retain their own lawyer to provide independent legal advice on the issues which are subject to the mediation. If settlement is achieved, most mediators will draft a separation agreement that each party will take to their respective lawyers for independent legal advice. Each lawyer will then review the separation agreement with their client to make sure that the terms therein are clearly understood and to provide legal advice on the issues.
If the parties are in agreement, the separation agreement is then signed by each party and witnessed. The lawyer usually signs a certificate of independent legal advice confirming their client understood what they were signing and were not under any undue influence or pressure to sign it. When retaining lawyers to provide independent legal advice, strong consideration should be given to retaining lawyers trained in the "principled approach" so not to frustrate the settlement efforts of the parties and the mediator.
Mediation is a voluntary process that is often successful when two mature adults commit to resolving their differences by focusing on solutions rather than legal positions. The parties will sign a Mediation Agreement, which will usually state that everything discussed in mediation cannot be used in court in the event that mediation is unsuccessful. This could mean that the parties are starting from ground zero if the matter does proceed to court.
Like with other processes, mediation is not for everyone. Victims of abuse are often not good candidates for mediation. Most mediators will screen each party separately with a view to determining if mediation is a suitable process. If a power imbalance in the relationship exists, the involvement of lawyers in the mediation process may address this concern.