Chapter 3 Your Process
Once again, we return to the central theme of devising your own particular plan that works for both individuals. Aside from some of the statutory restrictions, we can be most creative as we design a process and plan that’s your right fit. Such creative potential and self-empowerment remain the classic hallmarks of mediation as an appropriate process option. The point here however is that mediation as a balanced and mutually responsive, yet informal procedure works comparatively well with respect to other forms of cooperative negotiation.
To ensure as much as possible that the mediated agreement will prevail, and not be challenged or set aside in the future, there are two important requirements. Firstly, there needs to be full property and financial disclosure made by both persons. This is to avoid any allegation in the future that one person wasn’t made fully aware of the other’s assets, or debts. Secondly (and this one is a bit more touchy): each person should have independent legal advice with respect to the mediated agreement. This is to avoid any allegation in the future that one person was forced or coerced into signing the agreement. The mediator will fully explain to both persons why this is so advisable, and again, it cannot be over-emphasized that this process is the best one for doing so, as both persons will have already actively and jointly engaged in coming up with their own agreement, usually before going to see respective lawyers. At this juncture, it can well be expected that both are pleased with the result and the process used to achieve it and will be motivated to ensure that their agreement will be respected in the future by anyone scrutinizing it. The mediator will have explained that obtaining independent legal advice will be the best shield for both of them to protect against any such scrutiny.
To provide some comparative context, lets look at other process options. One such avenue is directly through the lawyers from start to finish. However, many people have commented that “it just doesn’t feel right “ Remember we’re dealing with people who are pledging some form of future together (dare we say love) who may repel from the procedural package of a lawyer’s letter specifying contractual specifications in the shadow of perceive negotiation strengths and weakness(& BATNA Best alternative to negotiating an agreement) Are you really interested in a distributive discussion with the distinct possibility of walking away from the deal? At the same time, the particular facts and circumstances may ultimately warrant full legal ownership in an inter-counsel pre-settlement. However, it would be fair to say that this type of complex or complicated case constitutes but a small minority of presenting scenarios.
Another process option is the self-styled cooperative bilateral negotiation without any lawyers or indeed neutral professionals. In the event that any and all the statutory prerequisites are complied with and the inherent challenges of an unassailable prenuptial agreement are avoided, this option may work.
Self-help through the Internet does not however equate well with self-determination as professionally dedicated (and indeed insured) through an accredited mediation neutral. If the method in the outcome is meant to be reliable, respectful and cost effective, you may have to reality check your computers allure of ‘something for nothing.’ That’s why mediation is chosen by so many who” just want to do it right “In fact, nothing says more about a wise and durable plan that is conscientiously and constructively built by both of you for both of you from the initial assessment conducted by a third-party neutral who is duty-bound to do it right by strict adherence to our Code of Conduct in dedicated service to self determination.
Nigel Macleod and Graeme Fraser
Nigel Macleod,
LL.B, AccFM (OAFM)
Adv. Pract. (ACR) (APFM)
Lawyer/ Mediator
Divorce Resolution Chambers of AGB Lawyers
1 Antares Drive, Suite 530
Ottawa, ON K2E 8C4
agblawyers.com
613-232-8832