When people are separating and divorcing, they can use many methods to reach agreements. Some people choose to make their agreements themselves and others hire lawyers. Another option people may use is mediation. This process is sometimes referred to as divorce mediation. In Saskatchewan, mediation is one of the approved early family dispute resolution processes. The purpose of early family dispute resolution processes is to encourage people to resolve their disputes outside of the court process. Mediation, however, does not grant a person a divorce. Divorce can only be granted through the court system. Divorce mediation is a term some people use to refer to resolving disputes related to the separation and divorce process. Divorce mediation is like other types of mediation in some ways, and different in others. This post will explore the similarities and dissimilarities between divorce mediation and other types of mediation.
What are the similarities?
Divorce mediation and other types of mediation are similar in the principles and structure of the process. One of the tenets of mediation is the principle of self-determination. This principle protects people’s autonomy in the resolution of their disputes. In all types of mediation, including divorce mediation, this principle is foundational to the process.
Another similarity between divorce mediation and other types of mediation is process design. The process design includes the style of mediation. Though some might argue that there are styles of mediation that are better suited to divorce mediation, in theory, any style of mediation can be used in divorce mediation. Some examples of styles of mediation are:
- Facilitative Mediation,
- Settlement Focused Mediation,
- Evaluative Mediation,
- Transformative Mediation, and;
- Narrative Mediation.
The final way divorce mediation and other types of mediation are the same is that the mediator is the guardian of the process. They are the guide the disputants follow to the goal of reaching a mutually satisfactory and sustainable agreement. Mediators help navigate the conversation and steer the ship. They can provide helpful information and communication skills. Mediators do not make decisions for the parties, nor do they provide legal, financial, or tax advice. Mediators help to empower the people involved to reach agreements that meet as many individual and shared interests as possible.
What are the dissimilarities?
Divorce is a legal process. As mentioned earlier in this post, divorce cannot be granted through mediation. Divorce can only be granted by the court. In Saskatchewan, most folks must be separated for one year before applying to become divorced. If the divorce is uncontested, meaning that neither party is arguing the terms of the divorce, the process can be quite simple. Divorce paperwork is submitted to the court and a fee is paid, and in due course the parties involved are granted a divorce. Thus divorce mediation does not refer to people being granted a divorce; instead, it refers to the process of negotiating the terms of the divorce before folks applying to the court for a divorce. Because divorce is a legal process, negotiations related to separation and divorce are governed by a legal framework. The legal framework is both provincial and federal. Family law is typically governed provincially, whereas legislation related to divorce is federally mandated. Other types of disputes may not need to consider legislation during the mediation process. In divorce mediation, the parties must be properly informed about the applicable legislation governing family law and divorce. If the parties decide to create an agreement that deviates from what the legislation stipulates, it may result in an unsustainable agreement. Some people may be comfortable moving forward with an agreement that is not in line with the legislation, however, they must be making agreements in a fully informed and conscientious manner.
Another dissimilarity between divorce mediation and other types of mediation is safety planning. While it is always important to consider power dynamics and safety in mediation, it is additionally critical in divorce mediation because of the overwhelming prevalence of family violence between intimate partners. Mediators who help people through separation and divorce negotiations use safety screening tools like the Mediator’s Assessment for Safety Issues and Concerns (MASIC). This can help the mediator build safety plans to ensure their clients can participate effectively while minimizing the risk of violence. Separation and divorce can increase the likelihood and intensity of intimate partner violence. Therefore it is vitally important that mediators and other family law dispute resolution practitioners are trained in screening and management of intimate partner violence and power dynamics.
The final way divorce mediation is different from other types of mediation is the social system involved. While systems theory applies to all types of mediation, the system involved in divorce mediation is specific and has its unique challenges. The system involved in divorce mediation often includes multiple generations within a family as well as friends, colleagues, advisors, and more. Negotiations related to divorce can cause emotional upset to the individuals involved, as well as to the system overall. Practitioners who provide divorce mediation must ensure they understand the systems at play. They can assist the parties through the negotiations by ensuring that the interplay of the systems is considered. An example might be a stepparent. While the stepparent is not directly involved in the negotiations related to the separation and divorce, they are affected by the outcome. It would not serve the parties well if they made agreements related to the separation and divorce that were in direct contravention of the goals, needs, and interests of a stepparent who is within the family system. An effective divorce mediator will test agreements made by the parties through the lens of the system and the interests of those directly and indirectly involved.
Mediation can be an effective way for people to reach agreements related to the separation and divorce process. Mediation cannot grant people a divorce, but it can help them make important agreements related to their divorce. It is helpful for mediators who offer divorce mediation services to be skilled in mediation and knowledgeable about the legal framework involved. There are similarities and differences between divorce mediation and other types of mediation, and it is always helpful for people to inquire as to the experience of their mediator before hiring them for a specific dispute.
