FOCUS: ON RESOLUTION of FAMILY LAW DISPUTES...
- through informed, moderated dialogue
- with a neutral mediator
- in a comfortable setting
- based on the principle of self-determination
- with a focus on children's interests
- at a comfortable pace
- in a voluntary process.
I am AJ Jakubowska, family law mediator and lawyer.
I have a graduate degree from the University of Toronto and a law degree from the University of Windsor.
I have 23 years of experience in the field of family law, both in the context of Alternative Dispute Resolution (of which mediation is a part) and litigation.
I am a strong proponent of mediation as a method of resolving family law disputes, particularly those involving children.
I believe that in many cases, a mediated, participant-crafted solution is preferable to litigation and can produce outcomes which are more sustainable in the long-term.
WHAT IS MEDIATION AND WHY USE IT?
Mediation is essentially a "dialogue". The participants in that dialogue are the parties to a dispute (either individuals, groups or other entities) and the mediator, who moderates their discussion, based on unique skills.
The shared goal of the mediation participants is resolution. The mediator is there to help, in a neutral role.
The principle of self-determination is fundamental to the mediation process. Each party's views and concerns are heard and respected. The process is designed to explore and, hopefully, address the very foundation of the conflict, so lasting solutions can be achieved.
WHAT IS "Mettā"?
"Mettā" in Pali (or "Maitri" in Sanskrit) means loving-kindness, good will, amity, interest in the well-being of others.
All those words and phrases describe my approach to mediation and my actual mediation model.
I am of the view that mediation truly succeeds only when the participants, including the mediator, express at least a willingness to be kind to themselves and to one another.
At first, the level of conflict may make mettā feel like a distant goal but with goodwill and commitment, on the part of all involved, resolution through MettāMEDIATION is possible.
THREE COMMON QUESTIONS ABOUT MEDIATION
1. Q: "Does the Mediator make decisions?"
A: No. It is not the Mediator who makes decisions, IT IS THE PARTIES THEMSELVES. That is one of the reasons mediation is often preferable to other modalities of dispute resolution - the parties empower themselves and each other, with the assistance of the Mediator, to make their own decisions - about their children, about their property, about support issues, about their futures.
A private process (as opposed to public court) in which a person selected by the parties makes decisions for them is called "arbitration".
2. Q: " I would like to try mediation but I am worried that my spouse will pressure me, threaten me and make me agree to things to which I really do not want to agree. There is a history of such pressure in our relationship. What can I do?"
A: a two-part answer here - :
a. Pre-mediation "screening", to ensure that the case is suitable for mediation, is a vital and absolutely necessary element of the mediation process. The Mediator must ensure that each party would be participating in mediation based on the principle of self-determination, free of pressure, discomfort, duress and undue influence.
b. Not all mediation meetings, and not all portions of each mediation session, have to proceed with the parties facing each other. Our offices are designed to give each party his or her own private space. The mediator will monitor the progress of the mediation closely and determine if and when a joint meeting is appropriate, in a common area.
3. Q: "Can we ask the Mediator for her opinions on some of the legal issues, for example?"
A: In the classic mediation model, the Mediator does not offer any opinions as to the issues or even suggest solutions to the parties. Her only role is to guide the parties: - through moderated dialogue, question and answers, focusing on interests as opposed to positions alone, identifying and considering possible solutions to the dispute and, hopefully, arriving at a mediated agreement.
"Directive" or "Evaluative" mediation is one where the parties have specifically empowered the Mediator to express opinions on the various issues (based on her legal experience) and propose potential ways of dealing with those issues. The parties must agree on this approach in advance (with each other) and then request specifically that the Mediator conduct the mediation on that basis. Again, the use of this mediation modality must be considered and agreed-on in advance.
In this second instance, the Mediator would not be "taking the side" of either party in offering an opinion. She would not be acting in her capacity as a lawyer, for either party. She would only be bringing her legal experience into the discussion to, hopefully, increase the likelihood of an agreement.
WHY IS MEDIATING CHILDREN'S ISSUES IMPORTANT?
In any family law dispute, the best interests of children matter the most.
Children are innocent bystanders to their parents' separation and any issues arising from it. They must be shielded from their parents' conflict to the greatest extent possible. Their short-term and long-term well-being depend on it.
Sometimes, conflict relating to children's issues becomes so acute as to require the input of a Judge, in the children's best interests. That being said, Court should never be the default venue in which to decide these fundamentally important issues.
If direct discussions between parents are not enough to resolve questions like where the children will live and who will make decisions about them, all efforts should be made to continue that dialogue in the context of mediation, where a skilled, neutral mediator will help parents to work through their issues and concerns, at all times in keeping with the children's best interests.
Family law Judges work very hard at ensuring children are protected through their decisions but they are "strangers" to the families who come before them for assistance. Parents are usually in the best position to decide about their children's future, through moderated, thoughtful dialogue. Mediation offers them a venue to do that.
IS MEDIATION RIGHT FOR ME? FOR US?
Mediation can be very successful in resolving disputes through open, honest, moderated dialogue.
While not all disputes are suitable for mediation and not all individuals should participate in the process, mediation does offer a chance at meaningful resolution for many individuals and many couples.
Mediation is an option even once a court proceeding has commenced and can proceed once the parties have agreed to "suspend" their court case, pending the outcome of their attempt at mediation.
Mediators screen potential mediation participants to ensure their dispute is appropriate for mediation and that each party comes to the discussion from a position of balance, empowerment, equality of bargaining power and voluntarily.
CONTACT US to find out if mediation is right for your dispute.