Q: My ex-husband and I are separated and are undergoing mediation. Do we each need to have lawyers in order to get a binding separation agreement?
A: Congratulations on working through the alternative dispute resolution system (ADR). ADR refers to any means of settling disputes outside of the courtroom and typically includes early neutral evaluation, negotiation, conciliation, mediation, and arbitration. Negotiation allows the parties to meet in order to settle a dispute. The good news is that it’s been proven that people who use this type of process to negotiate a settlement are much more satisfied with their agreement and are also more likely to successfully implement it.
It’s key to understand the process and limitations of what the mediation process can accomplish. First, most mediators have different backgrounds, so some may not have a law degree. (In Canada, you can not practice law or give legal advice without being called to the bar.)
The Mediator’s role is a simple one—to act as third party neutral, helping all parties to understand the entire situation. Once you and your ex have come to some sort of agreement on each issue—or even parts of each issue—the mediator will then construct a memorandum of understanding that you can take to your individual lawyers for independent legal advice. The lawyer is responsible for telling you what your legal rights are and ensuring you understand the agreement you have made during the negotiation.
If there are any issues that you could not resolve through this process, or if your lawyer feels you may not have understood what you agreed too, then it is at this point that your individual lawyers will advise you.
I also always send clients back to the lawyer to discuss and resolve any issues pertaining to child or spousal support. Although it is a financial issue, it is first a legal issue.
As a certified divorce financial analyst working in the mediation process, I always review the details of the financial agreement with my client before they go their lawyer so that they are very aware of the agreement and what it means financially for them going forward.
Without independent legal advice, you may find that your separation agreement is not valid and does not stand up in a court of law should you need to enforce or change something in the future. It would be a waste of your time and money to not follow through with this final step.
Debbie Hartzman is a certified divorce financial anylyst with Professional Investments in Kingston, Ontario.
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