Family Law Mediation

Mediation is a process in which the two sides of a dispute work with a neutral third party, the mediator, to reach an agreement that deals with all or some of the issues in dispute. Mediation is not couples counselling; it is a legal process intended to help resolve a dispute without going to court. Mediators are usually trained professionals, and lawyers who are family law mediators are specially accredited 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. Both parties must be willing to work together and each must be prepared to give a little and take 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, much cheaper than litigation.

A couple can start mediation as an out-of-court option or 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 started, a settlement can be recorded as either a separation agreement or as an order that the parties agree the court will make, called a consent order. If a couple are married, a consent order may make sense since they'll require an order for their divorce anyway.

Normally, just the people involved in the dispute attend mediation with their mediator, but they can bring their lawyers along as as well. The mediator's job is to facilitate the parties' negotiations, to provide a neutral third-party perspective, and to help ensure that any settlement is reasonably fair to all concerned, including the children of the relationship. As a mediator myself, I often appreciate having the lawyers present; it makes my job easier 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, and should have no bias in favour of either party and no special connection with either party. The mediator's position as a neutral third party is probably the mediator's most important role. It allows the mediator to be absolutely frank with each of the parties, and to point out when a party's expectations for an issue are unrealistic. Someone involved in mediation is a lot more likely to accept that their position is unreasonable when a mediator says so, rather than the other party.

The mediation process

The first step is for each party to meet with a lawyer. Even if you don't intend on hiring the lawyer for the whole mediation process or have the lawyer present at the mediation, it can be critical 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 prefers 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. 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.

Getting organized

The mediator will usually meet with the parties separately before the actual mediation begins. This is because mediators, like arbitrators, parenting coordinators, and other Family Dispute Resolution Professionals, now have a positive duty to screen parties to determine if family violence is present and if it is, to ensure that the mediation process is safe for all concerned.

In addition to screening for family violence, the pre-mediation meeting also gives the mediator a chance to get to know the parties a bit, and for the parties to discuss with the mediator any concerns or questions they might have.

Next, the parties and the mediator will agree to a schedule of meetings, the ground rules for these meetings, and the objects or goals of the process. Sometimes the decisions as to 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 since ground rules aren't required or because the lawyers will be able to agree on the ground rules between themselves. Whether there are multiple meetings or not depends largely on the parties and the number of issues outstanding. Often a single half- or full-day meeting will produce a settlement.

Exchanging information

The parties will then begin to assemble the documents required to explain their separate financial situations. Often this will consist only of completing a financial statement. A financial statement is a useful court form that sets out each party's income and expenses, and assets and debts.

Supporting documents will have to be gathered as well, which will usually consist of things like:

1. income tax returns,
2. paystubs or other proof of income,
3. property assessments or appraisals, and,
4. corporate financial statements and tax returns.

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

These documents will then be exchanged between the parties in preparation for the first mediation session. Based on the documents disclosed and the issues on the table, additional documentation may be required to be produced and exchanged. A party who is self-employed may have to produce corporate financial statements and corporate tax returns in addition to the usual materials. The extent of any additional materials will depend entirely on the circumstances of each couple and their children.

As well, the parties may need further additional input and information from people such as child psychologists, accountants, and the like. If these people are needed to help settle matters, there may be an additional waiting period while these experts conduct their investigations and prepare their reports.

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 and each party's position and, when a position is legally complex or technical, 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 session.

Mediating the dispute

Once all the information, reports, and briefs (as applicable) have been gathered and exchanged, and everybody has had a chance to digest everything, the parties, the lawyers (if attending) and the mediator will meet at one or more mediation sessions. The mediator will first welcome everyone to the table, and ask the parties to sign a mediation agreement before anything else happens. The mediation agreement sets out the terms of the mediation sessions, requires the parties not to use the discussions held during mediation in any litigation, and describes the terms on which the mediator will be paid.

After the mediation agreement has been signed, each 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. Each party will have the opportunity to share their thoughts on things. If lawyers are being used, they will inevitably do most of the talking, but the parties themselves will have ample opportunity to speak their minds... and you really should, it's your dispute!

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 problem, 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 their grievances of the past. If the parties are split into separate rooms, the mediator will alternate working with each party and will shuttle between each of the rooms. You may hear people describe this style of mediation 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, at the mediation session itself. The minutes 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 minutes to acknowledge the settlement that was reached.

Formalizing the settlement

The final stage involves the putting the terms of the agreement into more formal language in a legal document that both 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 or the parties need to get divorced, an order that the parties agree the court should make. Often a mediator who is also a lawyer will prepare the separation agreement.

If a party changes their mind before the separation agreement or consent order is filed, the minutes of settlement (if those were prepared) can be enforced in court as evidence of the deal 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 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 leaving nothing else for further negotiation or confirmation. In the 2005 British Columbia Supreme Court case of S.A.A. v. P.W.J.A., 2005 BCSC 603, 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 confirm 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 positions (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 session is the ability to actively 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 is 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 the session.
• 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 settlement you later regret.
• Bring the documents you were asked to bring. 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 emotions to come up. Try to express them in a productive way so that it 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 is saying.
• 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

Family justice counsellors

Mediation is available at no charge from family justice counsellors through those BC 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.

Clicklaw's website includes a current list of Family Justice Centres.

Other agencies and organizations may provide mediation services, however make sure that they can help with family law disputes before trying to get help.

Resources and links

Legislation

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

Links

• Mediate BC Website for Family Mediation Services
• Provincial Court family justice counsellors
• Family Justice Centres

This information applies to British Columbia, Canada. Last reviewed for legal accuracy by Sandy Thomson and Taryn Moore, August 1, 2016.

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.