Reasonable Doubt: The basics of mediation in family law cases

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      A divorce or separation is never easy. Fortunately, going to court is not your only option. Mediation is a popular method of resolving family-law cases. Here are the basics.

      What is mediation?

      Mediation is a voluntary process where the two people involved in the family-law case hire a mediator who acts as a go-between to help both people resolve their dispute. The mediator does not act for either person and does not give legal advice. The mediator cannot impose a decision on the two parties. The mediator’s goal is to help both parties reach a resolution of their dispute by agreement.

      Family-law mediators are usually family lawyers themselves who have additional mediation training in order to be qualified to work as mediators.

      The cost of mediation varies and depends on the mediator’s hourly rate and policies. Mediation costs are usually split equally between the two parties.

      You can attend mediation with or without lawyers representing the parties, though it is a good idea to at least get some legal advice prior to going to mediation.

      More information about family law mediators in B.C. can be found here.

      When does mediation occur?

      Mediation can occur at any time after the parties separate. You do not need to have started court proceedings in order to attend mediation. Many people proceed to mediation without ever having started court proceedings or having set foot in a courtroom. You can also attend mediation even though you have commenced court proceedings.

      All you need to proceed to mediation is the will of both parties to do so (and some preparation beforehand that will be detailed further below).


      What happens at mediation?

      The mediation usually takes place at the mediator’s office or at the office of one of the lawyers, if lawyers are involved.

      If there are no lawyers involved, then there will just be three people at the mediation: the two people involved in the family-law case and the mediator. You should refrain from bringing friends or family members to mediation.

      Depending on the mediator’s and the parties’ preferences, the mediation can occur in one of two ways: either everyone remains in the same room together for the duration of the mediation or each party remains in separate rooms and the mediator shuttles between the two rooms throughout the mediation. This second method is called “shuttle mediation” and is the most common form of mediation in family-law cases.

      During mediation, the mediator will talk to each party and work on getting each party to move closer and closer to a resolution, which usually involves both parties compromising in order to arrive at an agreement on all the issues in dispute.

      Mediation typically lasts a full day but sometimes can require multiple days, depending on the complexity of the situation. The mediation session ends when either party wishes for it to end—as it is a voluntary process—or when an agreement is reached.

      If a mediation ends with no agreement reached, both parties simply walk away. There is no penalty for failing to reach an agreement at mediation, and both parties are free to try mediation again at a later date.

      What do I need to know before attending mediation?

      Before you can proceed to mediation, you will need to prepare certain documentation in order to assist the mediator. The more the mediator knows about the issues in your case ahead of time, the more effective the mediator will be during the actual mediation.

      Some documentation you should consider preparing in advance of mediation include:

      1. A summary of the issues in dispute (children, property, debt, support, etcetera) as well as your position on each of those issues.
      2. A list of the assets and debts at issue, along with estimated values for each.
      3. Your most recent tax return and notice of assessment, if support is an issue.

      Even if you decide not to have a lawyer represent you at mediation, it is a good idea to speak with a lawyer prior to mediation to get advice on what you need to do to prepare for mediation. The better prepared you are, the more likely the mediation will be successful.

      Why is mediation better than court?

      Generally speaking, mediation is a much cheaper process than going to court. You can also usually obtain a mediation date much faster than obtaining a court date, as the courts have very limited availability.

      Mediation is also much less confrontational than court, as the goal at mediation is to work together in order to reach a resolution. You retain much more control over your own situation at mediation, since you are required to negotiate at mediation, whereas in court you have no negotiating ability and instead a decision is unilaterally imposed on you by the court.

      Mediation is a worthwhile dispute-resolution mechanism that can save you considerable time, money, and stress. Speak with a family-law lawyer to determine if mediation is appropriate for your situation.

      A word of caution: you should not act or rely on the information provided in this column. It is not legal advice. To ensure your interests are protected, retain or formally seek advice from a lawyer.