A Word to Newlyweds: Mediation

The prospect of marriage sparks a wide range of new considerations which promote joint decision-making. Taking on life together on life‘s terms is the crux of your informed decision to marry in the first place. Easily said but what does that actually mean when we shift the focus to better communication and effective problem-solving. The context, of course, is the happier outcome of staying together for “better or worse, sickness and in health.” Statistically, however, a significant minority (conservatively estimated to be upwards of 35%) find themselves beset by the reality of separation and divorce. Then there is the universal truth that we are all to face the end of our mortal coil. In all of these cases, we are constrained to consider a form of prenuptial agreement which would sort out the multiple consequences of the joint decision to tie the knot. Perhaps a marriage contract can construct a better slip-knot. If separation becomes a reality, let’s make it easier and clearer for both parties to move on cooperatively, if not amicably.

This rationale may constitute more than being overly cautious or worse yet, negative at a classic time of unbridled optimism. As Drs. Bradberry and Grieves write in Emotional Intelligence 2.0:

“When you allow yourself to anticipate change -and understand your options if changes occur -you prevent yourself from getting bogged down by strong emotions like shock, surprise, fear, and disappointment when changes actually happen. While you’re still likely to experience those negative emotions, your acceptance that change is an inevitable part of life enables you to focus and think rationally, which is critical to making the most out of an unlikely, unwanted, or otherwise unforeseen situation.”

The date – check, the venue reserved
– check, the caterer booked – check.
Oops! We forgot the prenup!

Here’s a little more information about mediating marriage contracts from the perspective of a professional family mediator. This may inform your decision to add one more box to your marriage ‘to-do list’.

The law in Ontario as it relates to marriage, spousal relationships, children, and finances is grounded in the recognition of informed decision making in the context of a good and fair structure taking into consideration the objective responsibility for dependency in family relations, especially when there are children. While we do not require our courts to intervene in all cases, family practitioners certainly appreciate the importance of clear family law guidance for problem-solving and planning. We often refer to that information backdrop as the ‘law model.’

Generally speaking, it will be the parties themselves that craft their own settlement- whether it’s before the wedding ceremony (i.e. prenuptial), during the course of the marriage or separation, in the midst of the case and settlement litigation sequencing, or outside of the judges’ trial chambers.

Common sense suggests that an earlier juncture of problem-solving yields a better outcome. At the institution of contested court proceedings, a new predilection to adversarial conduct and positional bargaining emerges to the inevitable detriment of goodwill and financial cost. In mediation, we strive for the elimination of conflict so early collaboration becomes our fundamental recommendation.

It’s just about the details, like who gets the
house and who gets the friends.

Consistent with the mainstream evolution of alternative dispute resolution (ADR) we have found that interest-based negotiation is the most effective way to plan out a joint strategy that respects each individual’s perspective and goals. This is the classic win-win dynamic and mediators work diligently to balance their conversation so that both participants are actually being heard by the other person.

Moreover, we ensure that the mediation participants are well supported by reliable legal information, full and fair disclosure while enlisting other professional resources, notably independent legal advice. On that note, we have found that most lawyers are fully supportive of their client’s proactive and preventative intentions while respecting the non-adversarial tone of pre-nuptial discussions. The informed choice of the best lawyer for you and the mediation process becomes important in setting the table for cooperative strategic planning.

In terms of the subject matters, the list spans a wide range of considerations. The two major substantive matters for discussion always include property and spousal support. Oftentimes, we see the short-term interest of what would happen in an early break up as being separate and distinct to a longer-range plan to fully respect developed financial dependencies, particularly when there may be children in the offing. Concern and strategies about the pre-existing principle residence becoming the ‘matrimonial home’ as stipulated by our Family Law Act amount to major consideration. However, people seem to benefit from good process management and clear financial choices in mediation.

Inheritances, tax, and investment planning are usually discussed, and, in many cases, our mediation clients are encouraged to explore other professional resources to provide additional financial planning in substantive detail. At all times, however, a professional family mediator must extend their clients’ ethical protections beyond impartiality to neutrality. That means that such intervention must safeguard both clients throughout the mediation process and within the larger context of the marketplace.

From the initial assessment to the completed memorandum of agreement, couples are assisted by the mediator’s recommendations particularly with respect to process management. In the tradition of social sciences, we know that people benefit from the structure in helping craft and decide upon their own future and marital planning. We call this concept of individual empowerment ‘self-determination’ and this constitutes the mediator’s prime directive.

Good plan… Let’s do it!

The practice of mediation in marriage contracts is a highly-specialized vocation. The development of such specialization may be rooted in years of experience but we have found that to truly meet the needs of all Canadians and self-determination, a ‘best practices’ mediator must be prepared to clean house and ensure that adversarial and societal biases are thoroughly scrutinized. We strive to provide a better mediation process that works effectively to assist the couple in sorting out these significant matters consistent with their joy and happiness in forging a new future for better or worse.