5,310
edits
Changes
no edit summary
{{JP Boyd on Family Law TOC}}
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 covers deals with all or some of the issues in dispute. Mediation is not marriage couples counselling; it is a legal process intended to help resolve a dispute having to go without going to court. Mediators are usually trained professionals, and lawyers who represent themselves as Family Law Mediators must be are family law mediators are specially accredited by the Law Society of British Columbia.
This chapter 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.
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 Mediation is also usually 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 a court proceeding has begunstarted. The result of a successful process of mediation is usually a separation agreement. If a couple are marriedlitigation has started, the terms of a mediated settlement can be put into the terms of recorded as either a consent separation agreement or as an order processed through that the normal desk order divorce process so that an appearance before a judge is not necessary. Unmarried couples can also put parties agree the terms of their agreement into court will make, called a "consent order." If a couple are married, however as married couples usually want to get a divorce, consent order may make sense since they're going to be asking the court ll require an order for a their divorce order regardless of the settlementanyway.
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 to 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 both each of the parties, and to point out when a party's stance expectations on an issue is are unrealistic. People Someone involved in mediation are is a lot more likely to accept that their his or her position is unreasonable when a mediator tells them says so rather than their spousethe other party.
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 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.
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.
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.
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.
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.
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.
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.
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.
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.
Back to the top of this chapter.
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.
Telephone: 604-827-5024
Fax: 604-822-0308
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.
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.
{{JP Boyd on Family Law Navbox|type=chapters}}