Difference between revisions of "Family Law Mediation"

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 [http://www.lawsociety.bc.ca Law Society of British Columbia].

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 the mediation services offered through the provincial government.

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.

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.

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.

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.

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,  a 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 usually consist of things like:

#income tax returns;

#paystubs or other proof of income;

#property assessments or appraisals; and,

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.

Once all the information, reports and briefs have been gathered and exchanged, and everybody has had a chance to digest everything, 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 participation 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 signing the mediation agreement, 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 minds... and they really should, it's their 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, tamp the emotions down when things get heated, and keep everyone focussed on their interests and the law rather than their emotions and the 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 call this style ''shuttle mediation''.

Assuming the mediation process is successful, the mediator will often prepare a list describing how each issue has been resolved called ''minutes of settlement''. 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.

The final stage involves the putting 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 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.   

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.

#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 his or her position to ensure that you know what the other side 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...," trying 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.

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 which you might be happy with, rather than a single fixed, rigid goal.

* Ask for a break when you're feeling too wound up or upset to continue rather than abandoning the session.