Family Law Mediation

Mediation is a process in which the parties to a dispute work with a neutral third party, a mediator, to reach a settlement of some or all of the legal issues in their dispute. It's important to know that mediation is not couples' counselling. It's not a process designed to help people reconcile and resume their relationship, although it has at times had that effect. It's a dispute resolution process intended to help people settle legal problems without going to court.

People who work as mediators are usually trained professionals who qualify as "family law dispute resolution professionals" under the Family Law Act, meaning that they have the experience and education required by the Family Law Act Regulation. Lawyers who are "family law mediators" are specially accredited to mediate family law disputes by the Law Society of British Columbia.

This section provides a brief overview of mediation, a description of the mediation process, some tips for making the most of mediation, and an introduction to the mediation services offered through the provincial government.

Introduction

At its heart, mediation is a cooperative, managed process of negotiation. All parties must be willing to work together, and each person must be prepared to give a little if they expect to get a little. Because the mediation process is based on a cooperative effort to achieve a common goal — a settlement of the legal issues — there is usually a lot less of the bitterness and acrimony that can accompany litigation. Mediation is also much cheaper and much faster than going to court, and more likely to produce results that are in the interests of the parties and their children.

In mediation, the parties work with a neutral professional, a mediator, to settle their legal issues. The mediator helps the parties talk to each other and recognize their interests, and tries to identify options for settlement. The mediator provides a useful third-party perspective and helps to ensure that any settlement is reasonably fair to all concerned, including the parties' children. The mediator will take one of two different approaches to their role:

• Evaluative mediation: in this approach, also called directive mediation, the mediator will also make comments and observations about the strengths and weaknesses of each party's position, often from the perspective of the likely result if the dispute were to be resolved in court.
• Non-evaluative mediation: in this approach, also called interest-based mediation, the mediator does not comment on the strengths and weaknesses of each party's position and, rather than looking at the law and the probable result if the dispute were to be resolved in court, tries to focus the parties on their separate and shared interests.

People can start mediation right off the bat, as soon as a legal problem has come up, or they can use it as a settlement process after a court proceeding has started. The result of a successful process of mediation is usually a separation agreement. If litigation has already started, a settlement can be recorded as a separation agreement or as an order that the parties agree the court will make, called a consent order. If the parties are married, a consent order may make more sense since they'll usually want an order for their divorce at the same time as they're wrapping everything else up.

The parties can meet with their mediator on their own or with their lawyers. As a mediator, I usually appreciate having the parties' lawyers present, especially when I'm asked to take an evaluative approach to resolving the dispute. I recognize that having the lawyers at the mediation meeting costs the parties a bit more money, but it makes my job easier and increases the likelihood of settlement if I can rely on the lawyers to explain the law or to point out why a particular position is ill-advised.

The mediator has no stake in how the mediation turns out, should have no bias in favour of either party and should have no special connection, business or otherwise, with either party. The mediator's position as a neutral, objective stranger is probably the mediator's most important contribution to the resolution of the parties' dispute. It allows the mediator to be absolutely frank with each of the parties, and to point out when a party's expectations on an issue are unfair, unrealistic or problematic for some other reason. Someone involved in a mediation process is much more likely to accept the advice that their position is unreasonable if that opinion comes from the mediator rather than another party.

Working with "family law mediators" under the Family Law Act

A mediator who qualifies as a "family dispute resolution professional" under the Family Law Act must meet the requirements set out in the Family Law Act Regulation. Section 4 of the regulation says that:

(1) Only a mediator who is qualified as a family dispute resolution professional may conduct a mediation in relation to a family law dispute.

Lawyers who qualify as family law mediators meet the training requirements of, and are accredited by, the Law Society of British Columbia. You can find out if a lawyer is a "family law mediator" by looking the lawyer up in the Lawyer Directory on the Law Society's website. The training requirements that professionals other than lawyers must meet to qualify as "family dispute resolution professionals" are set out in section 4(2) of the Family Law Act Regulation, and include:

1. being a member in good standing with specific organizations,
2. meeting specific educational and experiential requirements,
3. taking continuing family dispute resolution training, and
4. carrying professional liability insurance.

Section 4 of the regulation imposes two extra duties on mediators who are family dispute resolution professionals: they must use written participation agreements; and, they must provide the parties with confirmation that they qualify as family dispute resolution professionals. Section 4(3) says this:

(3) The following practice standards apply to a family dispute resolution professional who wishes to engage in mediation in relation to a family law dispute:

(a) before initiating mediation, the mediator must enter into a written agreement to mediate with the parties to the family law dispute;

(b) before initiating mediation, the mediator must provide written confirmation to the parties to the family law dispute that the mediator meets the professional requirements set out in subsection (2).

The mediation process

The first step is for each party to meet with a lawyer, hopefully a family law lawyer. Even if you don't intend on hiring the lawyer for the whole mediation process, or having the lawyer with you at the mediation, it can be really helpful to meet with a lawyer before the process begins to get some proper legal advice about the law that applies to your situation, and a sense of the general range of likely outcomes and the options available to you.

If you plan on retaining the lawyer for the mediation process, the lawyer will have the names of three or four mediators with whom they prefer to work. Mediate BC, formerly the BC Mediation Roster Society, maintains a list of many, but not all, of the people who are trained as mediators in this province. Their website can help you find a mediator and offers more information about the mediation process, and you can also do a google search for "family law mediator British Columbia" to get more names. Many family law lawyers — who may or may not be members of Mediate BC — are also accredited family law mediators; lawyers who work as mediators will usually say so in their advertising.

Once you've picked a mediator, the mediator will usually provide you or your lawyer with an intake sheet to get some basic information about you, your family and your legal dispute, as well as their usual participation agreement. Mediation participation agreements, just like the participation agreements used in collaborative negotiation, arbitration and parenting coordination, describe your rights and responsibilities during the mediation process, the process itself and the terms of the mediator's services. The mediator may want you to get independent legal advice about the meaning and effect of their mediation participation agreement if you have not hired a lawyer already.

Getting organized

The mediator will sometimes meet with the parties separately before the actual mediation begins. This is because mediators, like arbitrators and parenting coordinators, have a duty to assess for the presence of family violence under section 8(1) of the Family Law Act and, if it is present, the extent to which the family violence may affect:

1. the safety of a party; and,
2. the ability of a party to negotiate a fair agreement.

The mediator may not conduct this assessment for parties who are represented by a lawyer, because their lawyer will already have been required to assess for the presence of family violence. In addition to assessing for the presence of family violence, this meeting also gives the mediator a chance to get to know each of the parties a bit, and for the parties to discuss with the mediator any concerns or questions they might have about the mediation process.

Next, the parties and the mediator will agree to:

1. a meeting, or schedule of meetings,
2. the ground rules for any meetings, and
3. the legal issues that are to be addressed.

Sometimes decisions about ground rules and goals are left to the parties themselves; it is their process, after all, not that of the mediator. If the parties are using lawyers, this step may be left out either because ground rules aren't required or because the lawyers will negotiate the ground rules between themselves. Whether there are multiple meetings or not depends largely on the parties and the number and complexity of the legal issues. Often a single half- or full-day meeting will produce an agreement.

Exchanging documents and information

The parties will then begin to assemble the documents and information necessary to help everyone understand the facts and the position each party is taking. Sometimes this information is purely financial in nature. Depending on the circumstances and the issues, the parties may also want to gather parenting assessments, educational assessments, psychological assessments, medical assessments and so on.

Financial information is often provided in the form of a financial statement. Financial statements provide the details of someone's income and expenses, and assets and liabilities, and may be prepared using a form supplied by the mediator or one of the court forms designed for this purpose. Supporting documents will need to be provided, usually consisting of things like:

• personal income tax returns, notices of assessment and any notices of reassessments,
• paystubs or other proof of income,
• property assessments or appraisals,
• bank and credit card account statements, and
• corporate financial statements and income tax returns.

It is critical that both parties are honest and forthcoming about their finances. Nothing will damage the mediation process and the chances of reaching settlement more than the discovery that someone is hiding information or acting in bad faith.

These documents will be exchanged between the parties before the first mediation meeting. Based on the documents disclosed and the issues on the table, it may be necessary to gather and exchange more information and documents. The nature and extent of any additional materials will depend entirely on the circumstances of each couple and their children.

Confidentiality

Mediation processes are private and confidential. This includes both the discussions at mediation meetings as well as the documents and information that the parties exchange for the purpose of those discussions. The reason why these discussions and documents are private is to allow everyone to be as honest and as creative as possible in exploring options for settlement. Each party needs to be able to make settlement proposals and admissions without worrying that their statements will be held against them in the event the process goes off the rails and winds up being resolved in court.

The Family Law Act helps support mediation by talking about the importance of making proper disclosure, and it encourages making proper disclosure by making sure that everyone knows that information that is disclosed is private and confidential, and can't be used for purposes other than resolving the family law dispute. Section 5 of the act says this:

(1) A party to a family law dispute must provide to the other party full and true information for the purposes of resolving a family law dispute.

(2) A person must not use information obtained under this section except as necessary to resolve a family law dispute.

Exchanging briefs

Where the parties are represented by lawyers, the mediator may ask the lawyers to prepare mediation briefs. Mediation briefs are summaries of the parties' relationship, the legal issues, any progress made on those issues to date, and each party's position on the legal issues which remain unresolved. When a party's position is legally complex or the issues are more technical than usual, mediation briefs may also provide an explanation of the law or facts supporting that position. The lawyers will give copies of their briefs to each other and to the mediator ahead of the first mediation meeting.

Mediating the dispute

Once all the information, reports, and briefs have been gathered and exchanged, and everybody has had a chance to digest everything, the parties, their lawyers, and the mediator will meet at one or more mediation meetings. The mediator will first welcome everyone to the table, and ask the parties to sign the participation agreement if that hasn't already happened.

After the participation agreement has been signed, every mediator will have their own preferred way of doing things. Most will ask someone to provide a general overview of the relationship and describe what exactly is at issue, or describe their own preliminary understanding of the facts and the legal dispute, or break the ice by asking their own questions to flesh out their understanding of the background facts. Each party will have the opportunity to share their thoughts on things. If lawyers are being used, they may want to do a lot of the talking, but the mediator will ensure that the parties themselves have plenty of opportunities to speak their minds... and you really should, it's your dispute! In fact, I prefer that the parties do most of the talking.

Once this initial exchange of positions is complete, the mediator may keep everyone in the same room or may split the parties into separate rooms. If the parties are kept together, the mediator will press on and work on the legal problems, issue by issue. The mediator will keep some control over how the discussion flows, help the parties express their emotions in a productive way when things get heated, and keep everyone focused on their interests and the law rather than grievances best left in the past. If the parties are split into separate rooms, the mediator will alternate working with each party. You may hear this style of mediation described as shuttle mediation.

Assuming the mediation process is successful, the mediator will sometimes prepare a list describing how each issue has been resolved, called minutes of settlement or a memorandum of agreement, before anyone leaves. Memoranda are usually rather informal and are meant to record the bare bones of the settlement in the expectation that a more complete document, like a separation agreement or a consent order, will be prepared in the future. The parties and sometimes their lawyers will be asked to sign the memorandum to acknowledge the settlement that was reached.

Formalizing the settlement

The final stage involves putting the terms of the agreement into more formal language in a written document that the parties, or, depending on the type of document, their lawyers, will sign. Typically, a settlement will be recorded as a separation agreement or, if there is an existing court proceeding, an order that the parties agree the court should make. Sometimes, a mediator who is also a lawyer will prepare the separation agreement. Mediators who are not lawyers may not prepare agreements.

If someone changes their mind before the separation agreement or consent order is filed, the minutes of settlement or memorandum of agreement can usually be presented to the judge as evidence of the deal that was reached between the parties. In fact, in certain circumstances the mediator's notes alone may stand as proof of the parties' agreement! As long as it is plain what has been agreed to and that the intentions of the parties were finally settled, the minutes, memorandum or the mediator's notes can be used as evidence of a binding agreement.

Note that if you are relying on a mediated settlement in court, it is important that the settlement be conclusive and leave nothing else for further negotiation, agreement or confirmation. In the 2005 British Columbia Supreme Court case of S.A.A. v P.W.J.A., the court held that the parties couldn't rely on an agreement that was "subject to confirmation" as a final, binding agreement. In that case, the agreement was subject to the wife producing financial information which, when produced, did not substantiate the information provided at mediation.

Tips for successful mediation

In mediation, as in all other forms of negotiation, the goal is to produce a fair agreement in an efficient and cooperative way. There are lots of things you can do that will hinder this process, and other things you can do that will help. The following are a few tips on how to make mediation work for you.

Remember that the more you argue about a particular position of yours, the more you wind up being stuck with that position. Many people find that after they've argued a particular point to death, they're stuck with it because they can't back down without losing face. Try to focus on interests — your underlying needs — rather than on specific outcomes, and to always ask yourself "Why not?" when you hear what the other side has to say.

One of the most important skills you can bring to your mediation is the ability to really listen to what the other side is saying. Active listening involves paying close attention to what the other side is saying, and restating their position to ensure that you know what the other side means and to ensure that the other side recognizes that you're hearing what they are saying. Phrases like "What I hear you saying is..." and "If I understand you correctly, what you're saying is..." can be extremely helpful. At the same time, you must also take some care in how you choose to express yourself. Instead of saying "You did..." or "You're a...," try something like "When you did that I felt..." or "I feel that...." This may all seem a bit flaky, but, believe it or not, it works.

You must be able to talk directly about a problem in an assertive, direct manner. Talk about the issues; don't skirt around them, no matter how uncomfortable or awkward you might feel. Take care in how you express yourself, but when you're in a private session with the mediator, don't mince words.

Things to do

The following points boil down to just a few central ideas: respect yourself and the other side; be flexible and avoid taking absolute positions; and, be honest and open. When you go into the mediation session, try to have a few options prepared, a few other alternatives that you might be happy with, rather than a single fixed, rigid goal. Think not just about what specific outcomes you would like, but why those outcomes are important to you. Think about what you hope for as it relates to your future finances and your future parenting relationship, and also what your biggest worries are as you transition into a two-home family. There may be a creative option that you and your ex have not thought about that meets both of your underlying goals.

• Be honest. Trust is essential to the mediation process.
• Be empathetic. Use phrases that indicate you understand and respect how the other party is feeling and thinking, like "I understand how you're feeling..." or "I appreciate the effort you've put into this..."
• Ask for a break when you're feeling too wound up or upset to continue, rather than abandoning a meeting.
• Dress comfortably and be prompt.
• If you disagree with something, say so. You must respect, and express, your own thoughts, opinions, and feelings. Agreeing simply to keep the peace on matters that are important to you can sometimes result in either hitting a wall later on in the mediation or ending up with a deal you later regret.
• Bring the documents you were asked to bring with you. If you don't, matters will only be delayed and the other side may be irritated by the inconvenience.
• Watch your body language! Making disgusted grunts, rolling your eyes, or slamming your fist on the table won't help anything.

Things not to do

Suspicion and dishonesty will damage the mediation process, sometimes beyond repair. If the mediator doesn't believe you and the other party doesn't believe you, it might be impossible to arrive at a negotiated settlement. Likewise, bitterness, jealousy, and resentment can also be triggers that undermine each party's faith in the other and make resolution by a judge at a trial inevitable.

• Try to avoid letting your emotions get tangled up with your analysis of the problem at hand. Mediation is tough work, and it's normal for strong emotions to bubble up to the surface. Try to express your feelings in a productive way so that they can actually move you forward rather than keep you stuck.
• Don't hide information, financial or otherwise, on the assumption that the other party won't find out. They usually do; and if they do, the process is likely at an end.
• Don't raise your voice or make comments that are hurtful.
• Don't interrupt. Wait until each person has stopped speaking before you interject, no matter how upset you might feel with what they are saying. If you want, you can raise your hand to let the mediator know you've got something to say.
• Negotiations are stressful, but don't use drugs or alcohol to calm your nerves. Drugs and alcohol will impair your judgment and reduce your ability to be objective and bargain in your own best interests.
• Don't feel that you must give an instant answer when you can't. Take a few moments or a few minutes to compose your reply; no one will begrudge a considered response.
• Don't make personal attacks or threats.
• Don't play on the other person's sense of guilt or otherwise be emotionally manipulative.

Government mediation services

Mediation is available at no charge from family justice counsellors through those Provincial Court registries that are designated as Family Justice Centres. Family justice counsellors are fully trained mediators, certified by Family Mediation Canada, who work with separated parents to assist in resolving disputes over the care of children, child support, and spousal support. Family justice counsellors can't deal with property issues and they usually can't help with support when someone's income is not straightforward.

Other agencies and organizations may provide mediation services. For instance, an organization called Access Pro Bono was offering free online family mediation and advice services to low and modest income families through the Virtual Family Mediation Project. Make sure whatever service you learn about can help with family law disputes before trying to get help.

Resources and links

Legislation

• Family Law Act
• Divorce act
• Family Law Act Regulation
• Notice to Mediate Regulation

Links

• Mediate BC website
  • See page on Separation & Divorce
• Provincial Court family justice counsellors
• Clicklaw BC Map of Family Justice Centres
• Mediation - Child protection and Aboriginal Families from Legal Aid BC
• Family Mediation Services from Mediate BC
• Family Law Mediators from the Law Society of BC
• Settling Out of Court from Justice Education Society of BC
• Resolving Disputes Without Going to Court from Dial-a-Law by the People's Law School
• Mediation, collaborative negotiation, and arbitration from Dial-a-Law by the People's Law School
• Family Mediation from Justice Education Society of BC
• Virtual Family Mediation Project from Access Pro Bono

Resources

• “Family Law Basics” video from JP Boyd
• “Alternatives to Going to Court” PDF from Justice Education Society of BC
• “A Case for Mediation: The Cost-Effectiveness of Civil, Family, and Workplace Mediation” PDF from Mediate BC Society
• “All About Mediation” infographic poster from Legal Aid BC
• “An Inside Look at Family Mediation” video from Legal Aid BC
• "How Can We Resolve Our Family Law Issues?" PDF from Legal Aid BC
• Sample mediation participation agreement (PDF) in cases where the parties are represented by lawyers.
• Sample mediation participation agreement (PDF) in cases where the parties are not represented by lawyers.

These sample participation agreements may not resemble the participation agreement you are asked to sign. They provide a more or less accurate picture of what mediation participation agreements usually look like, but should be used as a reference only.

You can also look at the website of John-Paul Boyd Arbitration Chambers which provides a number of model participation agreements for download.

This information applies to British Columbia, Canada. Last reviewed for legal accuracy by JP Boyd, 25 August 2021.

JP Boyd on Family Law © John-Paul Boyd and Courthouse Libraries BC is licensed under a Creative Commons Attribution-NonCommercial-ShareAlike 2.5 Canada Licence.