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{{JP Boyd on Family Law TOC}}
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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.
Mediation is a process in which the two sides of a dispute work with a neutral third party, a mediator, to reach an agreement which 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 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.
This page 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
==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.
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. Mediation is also much, 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.
A couple can start mediation as an alternative to court 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.


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.
Just the people involved can attend mediation with their mediator, or they can bring their lawyers with them 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, 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.
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 on an issue are unrealistic. Someone involved in mediation is a lot more likely to accept that his or her position is unreasonable when a mediator says so rather than the other party.


Back to the top of this chapter.
==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 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 he or she prefers to work. <span style="color: red;">Mediate BC</span>, formerly the BC Mediation Roster Society, maintains a list of many, but not all, of the people who are trained as lawyers 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.


II. The Mediation Process
===Getting Organized===


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 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, talk about the exchange of documents 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.


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.
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 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.


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.
===Exchanging Financial Information===


A. Getting Organized
The parties will then begin to assemble the documents required to explain their separate financial situations. Normally this will consist of simply completing a formal Financial Statement,  court form also used in litigation that sets out each party's income and expenses, and assets and debts. Supporting documents will have to be gathered as well, which will ususally consist of things like:
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.
* income tax returns
* paystubs or other proof of income
* property assessments or appraisals
* corporate financial statements and tax returns


B. Exchanging Information
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.
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.
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.
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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.
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
===Exchanging Briefs===
 
sd
 
===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.
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.


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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.
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
===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.
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.


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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.
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
==Tips for Successful Mediation==
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.
 
Back to the top of this chapter.
 
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.
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.
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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.
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
===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.
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.


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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.
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.
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
 
===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.
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.


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Back to the top of this chapter.
Back to the top of this chapter.


IV. UBC's CoRe Conflict Resolution Clinic
==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.
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.
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Telephone: 604-827-5024
Telephone: 604-827-5024
Fax: 604-822-0308
Fax: 604-822-0308
Back to the top of this chapter.


V. Government Mediation Services
==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.
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.
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A list of Family Justice Centres is available from Attorney General's Family Justice website.
A list of Family Justice Centres is available from Attorney General's Family Justice website.


==Further Reading in this Chapter==
Return to the <span style="color: red;">first page</span> in this chapter.
* <span style="color: red;">Mediation</span>
* <span style="color: red;">Arbitration</span>
* <span style="color: red;">Parenting Coordination</span>
==Page Resources, Links and Downloads==
===Legislation===
* <span style="color: red;">bulleted list of legislation referred to in page</span>
===Links===
* <span style="color: red;">bulleted list of linked external websites referred to in page</span>
* <span style="color: red;">Collab Roster</span>
===Downloads===
The link below will open a sample collaborative process participation agreement in a new window. You may require a PDF reader to view this file; Adobe Acrobat Reader is a free PDF reader available for download from <span style="color: red;">Adobe Software</span>. In this sample, Jane Doe and John Doe are entering into a participation agreement with their lawyers, Alice Smith and Sylvia Black.
:::: <span style="color: red;">Participation Agreement</span> (PDF)
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 and may not reflect the terms of the agreement you will sign into if you decide to use a collaborative settlement process. Use it as a reference only.
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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