Family Law Mediation

Mediation is a process in which the two sides of a dispute work with a third party, a mediator, to reach an agreement which covers all or some of the issues in dispute. Mediation is not marriage counselling; it is a legal process intended to help resolve a dispute having to go to court. Mediators are usually trained professionals, and lawyers who represent themselves as Family Law Mediators must be specially accredited by the Law Society of British Columbia.

This chapter provides a brief overview of mediation, a description of the mediation process, some tips for making the most of mediation, and an introduction to UBC's CoRe Conflict Resolution Clinic and the mediation services offered through the provincial government.

I. Introduction

At its heart, mediation is a cooperative, managed process of negotiation. Both parties must be willing to work together and each must be 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 — there is usually a lot less of the bitterness and acrimony that can accompany litigation. It is also usually much cheaper than litigation.

A couple can start the mediation process as an alternative to court or as a settlement process after an action has begun. If a couple are married, the terms of a mediated settlement can be put into the terms of a consent order processed through the normal desk order divorce process so that an appearance before a judge is not necessary. Unmarried couples can also put the terms of their agreement into a consent order, however as married couples usually want to get a divorce, they're going to be asking the court for a divorce order regardless of the settlement.

Mediation is often undertaken with lawyers as well as the mediator. Sometimes the parties are not represented by lawyers, and sometimes the mediator is a lawyer. 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.

The mediator has no stake in how the mediation turns out, no bias in favour of either party and no special connection to 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 both parties, and point out when a party's stance on an issue is unrealistic. People involved in mediation are a lot more likely to accept that their position is unreasonable when a mediator tells them so rather than their spouse.

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II. The Mediation Process

The first step is for each party to hire a lawyer. Even if you don't intend on hiring the lawyer for the whole mediation process, it can be critical to meet with a lawyer first to get some proper legal advice about the law that applies to your situation, a sense of the general range of like 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 he or she prefers to work. After lawyers have been retained, the parties and their lawyers will then decide on which mediator will be hired to guide the process.

Mediate BC, formerly the BC Mediation Roster Society, maintains a list of many, but not all, of this province's better mediators. 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, which means that they have received special training in mediation in addition to their training as lawyers.

A. Getting Organized If mediation is being undertaken as an alternative to litigation rather than to achieve a settlement in the middle of the litigation process, the mediator may ask everyone to come to an initial meeting in order to assess the dynamic between the parties, explain the process of mediation and discuss costs. Some mediators prefer to arrange separate, individual interviews with the parties, while others will ask the parties to each fill out a questionnaire and others will be happy with a couple of telephone calls.

Next, the parties and the mediator 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 the lawyers will be able to agree on the ground rules among 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.

B. Exchanging Information The parties will then begin to assemble the documents required to assess their separate financial circumstances. Normally this will consist of simply completing a formal Financial Statement, a document which sets out each party's income and expenses, and lists their assets and debts. Supporting documents will have to be gathered as well, which will ususally consist of things like income tax returns, paystubs, property assessments, and inventories of safety deposit boxes and so forth. It is critical that both parties are honest and forthcoming about their finances, as 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 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.

C. Mediation Once all the information has been gathered and everybody has had a chance to digest it, the parties, the lawyers 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 discusses the terms on which the mediator will be paid.

After that, each mediator will have his or her 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 state their position 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 mind.

At some point, the mediator will ask one party (and his or her lawyer) to step out of the room. The mediator will then chat informally with the remaining party and explore his or position in a lot more detail. The other party will then be called in for a private talk with the mediator, who will see where there are any points in common between the two sides. After that, the two sides will be brought back into the room to discuss where each party stands and where there seem to be areas of agreement.

As has been said, each mediator has his or her own style. After this point, there may be one or more private chats followed by round table discussions, or there may be just one long round table negotiation session. If there isn't enough information for anyone to come to an agreement, the meeting may be adjourned to a later date to allow the required documents to be collected and exchanged.

Assuming the mediation session or sessions prove successful, the mediator will prepare a list of what has been resolved and how each point has been resolved. This list is ususally rather informal. It isn't likely to be set in legal language, and some areas may require later refinement. The parties and sometimes their lawyers will then be asked to sign the list to acknowledge the agreement.

D. Formalizing the Agreement The final stage involves the setting the terms of the agreement into more formal language in a legal document which both parties, or, depending on the type of document, their lawyers sign. Such documents include: minutes of settlement, memoranda of understanding, separation agreements, and court orders drafted by consent. Once the document is executed it is legally binding and enforceable on both parties.

Note that in certain circumstances the mediator's notes alone may be enforced as an agreement. As long as it is plain what has been agreed to and that the intentions of the parties were finally settled, the notes can be used as a binding agreement which the court may use as the basis for an order.

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 Alcock v. Alcock, the court held that a person 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.

E. Downloads The link below will open a sample mediation agreement in a new window. You will require Adobe Acrobat Reader to view this file, a free program available for download from Adobe Software.

In this sample, our fictitious parties, Jane Doe and John Doe, are entering into a Mediation Agreement with their family law mediator, Robert Smith.

Mediation Agreement This sample document is just that: a sample. While it represents a more or less accurate picture of how these sorts of agreements might look, it may not be applicable to your situation nor may it reflect the agreement you will enter into if you choose mediation. Use it as a reference only.

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III. 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 to 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.

Firstly, 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 rather than on positions, and to ask yourself "Why not?" when you hear what the other side has to say.

Secondly, 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" means paying close attention to what the other side is saying, and restating their position to ensure that you know what he or she means, and to ensure that the other side recognizes that you're hearing what he or she 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...", say that "I feel that..." This may all seem a bit flaky, but, believe it or not it works.

Thirdly, 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.

A. Things to Do All of the following points boil down to just a few central ideas: respect yourself and the other side; be flexible and avoid absolutes; and, be honest and open. When you go into the mediation session, try to have a few options prepared, a few other alternatives which you might be happy with, rather than rigid, fixed goal.

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 articulate your own thoughts, opinions and feelings. Bring with you 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 will not help anything. B. 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 is impossible to arrive at a negotiated settlement. Likewise, bitterness, jealousy and resentfulness can also be triggers that undermine each party's faith in the other and make a 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.

Don't hide information, either financial or factual, 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 interupt. Wait until each person has stopped speaking before you interject, no matter how upset you might feel with what he or she 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. 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. In other words, don't be passive-aggressive. Back to the top of this chapter.

IV. UBC's CoRe Conflict Resolution Clinic

The CoRe Conflict Resolution Clinic is a non-profit mediation service run by student volunteers who have been trained by the Program on Dispute Resolution at the University of British Columbia's Faculty of Law. The program charges $25.00 per party to conduct mediation sessions run by a law student and a professional mentor.

Mediated settlements conducted through the CoRe Clinic are confidential, just as they would be if mediation was conducted through a lawyer or professional mediator. In addition, all discussion in the mediation process is made on a "without prejudice" basis, meaning that nothing which is said during the session can ever be used in court.

Both parties will have to sign an agreement to mediate which obliges each person to provide proper financial disclosure, keep the discussions confidential and to attempt to use the mediation process to reach a final, binding conclusion to the dispute.

CoRe Clinic UBC Faculty of Law, Annex 2 1822 East Mall Vancouver, BC V6T 1Y1 Telephone: 604-827-5024 Fax: 604-822-0308 Back to the top of this chapter.

V. Government Mediation Services

In April 2004, the provincial Ministry of the Attorney General started up something called the Family Mediation Practicum Project, which has two goals, to help people involved in a family law dispute resolve their differences out of court through mediation and to train new mediators. This is a free service.

The Family Mediation Practicum Project can deal with simple property disputes, issues involving the care and control of children, child support and spousal support. Visit the project's website to learn more and to apply for their mediation service.

Mediation is also available through Family Justice Counsellors through those Provincial (Family) Court registries which are designated as Family Justice Centres. Family Justice Counsellors are fully trained mediators, certified by Family Mediation Canada, who work with separated or divorced parents to assist in resolving disputes over custody, guardianship, access, and child and spousal support.

A list of Family Justice Centres is available from Attorney General's Family Justice website.