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Difference between revisions of "Mediation, Collaborative Negotiation, and Arbitration"

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{{Dial-A-Law TOC|expanded = family}}
{{Dial-A-Law TOC|expanded = family}}
This script discusses ways to resolve family law disputes without going to court.
Going to court to resolve a family law dispute can be stressful and expensive. Learn how mediation or collaborative practice can be used to resolve issues without going to court.  


==How to avoid going to court?==
==Understand the legal framework==
All sorts of people can have family law issues, including couples who are married, couples who aren’t married, people who have had a child together and anyone, such as a relative, who has an interest in caring for a child. Most family law issues involve separating parents.


When a couple decides to separate, they usually have to make a number of decisions. Where should the child live most of the time? What will the parenting schedule look like? Should support be paid, and if so, to whom and in what amount? Who should stay in the family home? How will the family property and family debt be divided?
===In a family law dispute, you don’t have to go to court===
Most family law disputes involve separating couples. When a couple splits up, they have to sort out how to divide property and debts, who should stay in the family home, and whether one of them will pay support. If there are children, more issues need to be worked out, including where the children will live, how decisions about their care will be made, and how to share time with the children.


Many people believe that going to court is the only way to resolve these issues. However, if the couple can work together they may be able to avoid court altogether. Going to court is sometimes unavoidable, which might be the case if someone was threatening to hide property, be violent or take the child out of town. Apart from urgent problems like these, most family law issues can be resolved out of court.  
Many people think going to court is the only way to resolve these issues. Going to court is sometimes unavoidable — for example, where someone is violent, is threatening to take the children out of town, or is hiding significant property.  


People who can work together despite their separation can try to negotiate a settlement between them. If this won’t work, the most common options are:
But most family law issues can be resolved outside the courtroom. If a couple can work together, they may be able to avoid court proceedings altogether. Two common options that let you avoid court are '''mediation''' and '''collaborative practice'''.


*Mediation
==Mediation involves a neutral person helping the parties agree===
*Collaborative settlement processes
In '''mediation''', the people in a conflict meet with a neutral person (a '''mediator'''), who helps them find a solution they agree on.


==What is “mediation”?==
The mediator will listen to what’s important to each party, ask for their opinions on the issues, and help them to come to their own solutions for the future. If parties have a child, the mediator will help them to make decisions that are in the child’s best interest. The mediator won’t make decisions for the parties; the mediator helps them make their own decisions.
In mediation, couples work together to identify and resolve the problems arising from the separation with the help of a neutral third party, a mediator. Usually the mediator is a lawyer or another trained professional. A lawyer mediator, called a Family Law Mediator, cannot provide independent legal advice to either party, but can provide some general information about family law and facilitate the settlement process.


The mediator will listen to what’s important to each party, ask for their opinions on the issues, and help them to come to their own solutions for the future. If parties have a child, the mediator will help them to make decisions that are in the child’s best interest. The mediator won’t make decisions for the parties; the mediator helps them to make their own decisions.
Usually the mediator is a lawyer or other trained professional. A lawyer mediator, called a '''family law mediator''', can facilitate the settlement process and provide both parties general information about family law.


==How to prepare for mediation?==
===What to expect with mediation===
Before hiring a mediator, each party may wish to get independent legal advice from a lawyer. The lawyer can give an idea about the range of potential outcomes, explain what to expect at the mediation and suggest what documents may be useful to take to the first mediation session.  
Mediation is usually '''less expensive''' than going to court. When parties first contact a mediator, the mediator will discuss the costs and the process. Mediators usually charge an hourly rate and people usually split the mediator’s costs between them.


==How much does mediation cost?==
====How long a mediation takes====
Mediation is usually less expensive than going to court with a lawyer. When parties first contact a mediator, the mediator will discuss the costs and the process. Mediators usually charge an hourly rate and people usually split the mediator’s costs between them.
Mediation meetings are normally two to six hours long. There is usually more than one meeting, depending on how many issues need to be resolved and how complicated those issues are. Sometimes the mediator will meet with one or each party separately. The mediator may also give parties extra tasks to perform between meetings, usually to gather additional documents and information.  


==How long does mediation take?==
====A settlement agreement====
Mediation meetings are normally two to six hours long. There is usually more than one meeting, depending on how many issues need to be resolved and how complicated those issues are. Sometimes the mediator will meet with one or each party separately. The mediator may also give parties extra tasks to be performed between meetings, usually to gather additional documents and information.  
When the mediator is a lawyer, the mediator will usually prepare a written '''settlement agreement''' describing how the parties settled the issues through mediation. The written document can be a written agreement or minutes of settlement.  


==Who prepares the agreement?==
When the mediator is not a lawyer, a party’s lawyer will usually prepare the agreement. Regardless of who writes the agreement, each party should get '''independent legal advice''' from a lawyer before they sign the agreement. This involves each party meeting with their own lawyer to get advice about what the agreement means, what rights and obligations the agreement gives to each party, and how the agreement affects other legal options that might otherwise be available.
When the mediator is a lawyer, the mediator will usually prepare a written document describing the settlement reached through mediation; the written document can be a written agreement or minutes of settlement. When the mediator is not a lawyer, a party’s lawyer will usually prepare the agreement. Regardless of who writes the agreement, each party needs to get an independent legal advice from a lawyer before they sign the agreement. It is very important to understand exactly what the agreement means and how it affects each party’s legal rights and obligations.


==What are “collaborative settlement processes”?==
===Collaborative practice features negotiating a settlement collaboratively===
Collaborative settlement processes (also known as collaborative divorce law) are a kind of negotiation where the parties work with lawyers and agree that they will do everything possible to reach a settlement without going to court. The parties and the lawyers work together to find a settlement. Specialists like counsellors, child psychologists and financial experts may be used to help find a settlement. Collaborative processes are centered on the parties’ needs and their child’s needs. Communications are usually open and transparent. Usually, the parties and their lawyers will meet to discuss the issues and negotiate an agreement.  
'''Collaborative practice'', also known as “collaborative family law”, is a kind of negotiation where each party has their own lawyer and agree they will do everything possible to reach a settlement without going to court.  


==How long do collaborative processes take to resolve matters?==
In fact, the parties typically agree that if either one starts contested court proceedings, their lawyers are disqualified from continuing to act for the parties.
More than one meeting will be required to come to an agreement on all issues. The number of meetings required will depend on how many issues need to be resolved and how complicated they are. Occasionally an agreement is reached after only one meeting between the parties and their lawyers.


==Is an agreement reached through mediation or collaboration binding? ==
Collaborative practice is centered on the needs of the parties and their children. Communications are usually open and transparent. The approach emphasizes full disclosure, communication, and a safe and respectful environment to help the parties negotiate a settlement collaboratively.
The agreement, if written, signed by both parties and the signature is witnessed by someone other than the parties, is a binding legal contract and can be enforced by the court.


==Can the agreement be changed?==
===What to expect with collaborative practice===
Separation agreements can only be changed if parties agree or if the court sets all or just part of the agreement aside. If parties agree to change the agreement or talk about changing the agreement, they can go back to mediation or a collaborative process to discuss the potential changes. Alternatively, they can go to court. Although the court will generally be reluctant to change an agreement that was fairly negotiated, the court may make an order on different terms if there was an important change in circumstances after the agreement was signed that was not expected when the agreement was negotiated.
In collaborative practice each party has their own lawyer who is their advocate and supports them through the negotiations.  


==When is mediation or collaborative process not appropriate?==
The parties meet, together with their lawyers, to work towards settling the issues. The number of meetings required will depend on how many issues need to be resolved and how complicated they are. Occasionally an agreement is reached after only one meeting.
While these are very good ways of resolving family law issues, they may not be appropriate if there has been family violence or child abuse, or if the other party won’t participate fairly during the process. To determine if either of these processes are best for your case, please consult a lawyer.  


==How to find a qualified and experienced mediator?==
Specialists like counsellors, child psychologists, and financial experts may be used to help reach a settlement.


*For a Family Law Mediator, phone the Lawyer Referral Service at 604.687.3221 in Vancouver or 1.800.663.1919 toll-free elsewhere in BC. A Family Law Mediator is especially useful if one of the family law issues is dividing up the assets and property.
When the parties agree on the issues, the agreement is put into writing by the lawyers. The agreement is signed by the parties and witnessed by someone other than the parties or their lawyers. It is a binding legal contract and can be enforced by the court.


*Call Family Mediation Canada at 1.877.362.2005 (toll-free) and ask for a list of the closest family mediators. Their website is www.fmc.ca.
==Common questions==


*Contact the Mediate BC Society, which maintains a list of family mediators. Call 1.888.713.0433 or click on [http://www.fmc.ca/ www.mediatebc.com].
===When is mediation or collaborative practice not appropriate?===
While both approaches are very good ways of resolving family law issues, mediation or collaborative practice aren’t appropriate in all cases. For example, they won’t work well if there has been family violence or child abuse, or if one party won’t participate fairly during the process.


*Family Justice Counsellors may be able to help at no cost. Family Justice Counsellors typically help people with custody, access, guardianship or child support disputes in Provincial Court. Phone 604.660.2421 in the lower mainland, 250.387.6121 in Greater Victoria or toll-free 1.800.663.7867 elsewhere in BC, and ask to speak with a Family Justice Counsellor in the nearest Family Justice Centre. Also, see the Family Justice website at [http://www.justicebc.ca/en/fam/ www.justicebc.ca/en/fam/].
===How can I find a mediator?===
To find a family law mediator, phone the '''Lawyer Referral Service''' at 604-687-3221 in Vancouver or toll-free 1-800-663-1919 elsewhere in BC. A family law mediator is especially useful where the issues to be resolved include how to divide up property and debts.


==How to find a lawyer trained in collaborative settlement processes?==
'''Family Mediation Canada''' has a director of family mediators. Call toll-free 1-877-362-2005, or visit their website at [http://www.fmc.ca/ www.fmc.ca].


*Phone the Lawyer Referral Service at 604.687.3221 in the lower mainland or 1.800.663.1919 elsewhere in BC.  
'''Mediate BC''' maintains a list of family mediators in British Columbia. Visit [http://www.mediatebc.com/ mediatebc.com] or call toll-free 1-877-656-1300.


*Visit BC Collaborative Roster Society’s website at [http://www.bccollaborativerostersociety.com/ www.bccollaborativerostersociety.com] and search for collaborative lawyers or other collaborative professionals nearby.
Family justice counsellors may be able to help at no cost. Family justice counsellors help people with parenting arrangements or child support disputes in Provincial Court. Phone 604-660-2421 in the Lower Mainland, 250-387-6121 in Victoria or toll-free 1-800-663-7867 elsewhere in BC, and ask to speak with a family justice counsellor in the nearest Family Justice Centre. You can also visit the BC government’s Family Justice website at [http://www.justicebc.ca/en/fam/ www.justicebc.ca/en/fam/].


*Visit Collaborative Divorce Vancouver’s website at [http://www.collaborativedivorcebc.org/ www.collaborativedivorcebc.org] for the name of a member lawyer, as well as for names of other collaborative professionals. All members of the association have received both collaborative family law and mediation training.  
===How can I find a lawyer trained in collaborative practice?===
Phone the '''Lawyer Referral Service''' at 604-687-3221 in the Lower Mainland or 1-800-663-1919 elsewhere in BC.  


*In the lower mainland, visit Collaborative Association’s website at [http://www.nocourt.net/ www.nocourt.net] for more information and list of professionals.
Visit the '''BC Collaborative Roster Society'''’s website at [http://www.bccollaborativerostersociety.com/ bccollaborativerostersociety.com] and search for collaborative lawyers nearby.


*In Victoria, call 250.704.2600 or go to [http://www.collaborativefamilylawgroup.com/ www.collaborativefamilylawgroup.com] for information on the Collaborative Family Law Group of Victoria and the name of a member lawyer.
Visit '''Collaborative Divorce Vancouver'''’s website at [http://www.collaborativedivorcebc.org/ collaborativedivorcebc.org] for the name of a member lawyer. All members of the association receive both collaborative practice and mediation training.  


*In Kelowna and the Okanagan area, check the Okanagan Collaborative Family Law Group at [http://www.collaborativefamilylaw.ca/ www.collaborativefamilylaw.ca].
In the Lower Mainland, visit the '''Collaborative Association'''’s website at [http://www.nocourt.net/ nocourt.net] for a list of participating professionals.


*In West Kootenays, call 1.866.926.1881 and visit [http://www.resolutionplace.ca/ www.resolutionplace.ca] or [http://www.nocourt.ca/ www.nocourt.ca] for more information on Resolution Place and the Collaborative Law Group of the Nelson.
In Victoria, contact the '''Collaborative Family Separation Professionals''' for the name of a member lawyer. Call 250-704-2600 or visit collaborativefamilylawgroup.com
In Kelowna and the Okanagan, contact the Okanagan Collaborative Family Law Group at [http://www.collaborativefamilylaw.ca/ collaborativefamilylaw.ca].


*Also, check the [https://sites.google.com/view/bfur BC Family Law Unbundling Roster] for family lawyers and paralegals willing to perform discrete tasks for clients.
In the West Kootenays, call 1-866-926-1881 and visit [http://www.resolutionplace.ca/ www.resolutionplace.ca] or [http://www.nocourt.ca/ www.nocourt.ca] for more information on contact '''Resolution Place''' at [http://www.resolutionplace.ca/ resolutionplace.ca] or the '''Collaborative Law Group of Nelson''' at [http://www.nocourt.ca/ nocourt.ca].


==What questions should parties ask the mediator or collaborative lawyer?==
Also check the '''BC Family Law Unbundling Roster''' at [http://unbundling.ca unbundling.ca] for family lawyers and paralegals open to being hired for discrete tasks on a family law matter.
When parties have the names of some mediators or collaborative lawyers, they may want to ask each of them the following questions before deciding whom to hire:


*Does the person belong to any professional organizations for mediators or collaborative family law lawyers?
===What questions should I ask the mediator or collaborative lawyer?===
To help decide on a mediator or collaborative lawyer, you may want to meet with a few and ask some questions. For example:
*Do they belong to any professional organizations for mediators or collaborative family lawyers?
*What kind of training have they received, and how long have they practiced as a mediator or collaborative lawyer?
*What kinds of family law issues do they handle? (Some mediators, for example, may only deal with child custody and access disputes. Other only deal with financial or property issues.)
*How much will it cost?


*Is the person a lawyer or a mental health professional?
===Can the agreement be changed?===
An agreement made after a mediation or collaborative process can be changed in two ways:
*if both parties agree to change it, or  
*if a court sets the agreement aside.


*What kind of training has the person received, and how long have they practiced as a mediator or collaborative lawyer?
If the parties want to change the agreement, they can go back to mediation or a collaborative process to discuss the potential changes. Alternatively, they can go to court. Although a court will generally be reluctant to change an agreement that was fairly negotiated, the court may make an order on different terms if there was an important change in circumstances after the agreement was signed that was not expected when the agreement was negotiated.


*What kinds of mediation or collaborative family law issues do they handle? (Some mediators, for example, may only deal with child custody and access disputes. Other only deal with financial and/or property issues.)
*How much will it cost?




[updated May 2017]
[updated May 2017]


'''The above was last reviewed for accuracy by Zahra H. Jimale.'''
'''The above was last reviewed for legal accuracy by [http://jimalelawcorp.com/about-zahra/ Zahra H. Jimale], Jimale Law Corporation.'''
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