Mediation is a method of dispute resolution in which the parties try to resolve a dispute or reach a settlement with the assistance of a mediator. It is a private, flexible and informal process where a mediator and disputing parties work together to find a solution that is acceptable to everyone. The parties, not the mediator, make the decisions about the terms of their agreement.
Mediation is effective for resolving many different types of civil and workplace disputes. It is also very valuable in family and child protection cases.
The use of mediation is increasing as people become aware of how it can help settle disputes quickly and inexpensively.
What is the mediator’s role?
Mediators are impartial and have no decision-making powers.
The mediator’s role includes:
Meeting with the parties and helping them to define the issues in dispute
Managing the mediation process and keeping the discussion on track
Helping parties to communicate their interest clearly and encouraging the exchange of relevant information
Exploring alternative resolutions
Helping parties overcome obstacles to reaching an agreement
Mediators can also provide a neutral and appropriate location for the mediation session.
Do I need a lawyer?
In family disputes lawyers participate in many ways: attending mediation with their clients, providing information and advice by phone throughout the process and advising on the final agreement made in mediation. It is up to you and your lawyer to decide how or if your lawyer participates. I always advise people to seek independent legal advice on any agreement made in mediation.
Is mediation confidential?
Confidentiality is very important in mediation and what is said in mediation is on a “without prejudice basis,” in other words what is said in mediation cannot be used in court; unless by law I have a duty to disclose the information you have told me. For example, if there was a child protection issue there is a requirement to report it but essentially what is said in mediation, stays in mediation.
Is a mediated agreement legally binding?
If an agreement is reached in mediation I prepare a Memorandum of Understanding. This is not a legally binding document. It becomes legally binding once it is incorporated into a Separation Agreement, Court Order or any other document as advised by independent legal counsel and fully executed. I can refer parties to mediation friendly lawyers to help make this happen. It is a “good faith” agreement in that each party is entering into the agreement with good faith that each party fully intends to follow through on the agreed to actions.
Are there situations where mediation is not advised?
Mediation is not advised in situations of current or recent domestic violence. That said, for some people in this situation mediation still remains preferable to the court system. The decision whether or not to proceed with mediation will be made in consultation with the people involved and their legal counsel. Paramount in these situations is the safety of all involved and creating an environment where the issues can be resolved fairly without coercion or increasing fear of personal safety.
How can I prepare?
I meet each person involved in the mediation prior to the mediation date to explain the process and to develop a full understanding of each person’s perspective on the issues. This is frequently referred to as a “pre-meeting”. Any specific preparation for the mediation will be discussed in a telephone call prior to the pre-meeting or during the pre-meeting.
What do I need to bring?
You may be asked to bring documentation depending on the issues being mediated. Most importantly I ask people to bring an open mind, a willingness to discuss the issues and listen to the perspective of the other person and the intention of negotiating a settlement.
What if I am in the middle of a court case?
If both parties agree mediation can start at any time and court can be adjourned while mediation is in process.
Who pays for mediation?
Typically the parties involved share the cost for family mediation. An unequal division of costs can be arranged but should be discussed at the beginning of the process. For workplace mediations it is typical that the employer pays for the mediation process.
Do you have to be a lawyer to draft a Separation Agreement?
The short answer is no. My clients use the Memorandum of Understanding (MOU) that I prepare in mediation as the template for their Separation Agreement. Some clients email their lawyer the MOU to use as the template for a Separation Agreement their lawyer will draft and others use online tools or sample agreements provided by BC’s Legal Services Society to draft their own agreement. I always encourage people to get independent legal advice before signing anything but it is up to each person to decide on what is best for them. This is an important conversation for spouses to have and what is best will depend on how important enforceability is, the likelihood of one party contesting issues down the road and costs. I can help you and your spouse make this decision together.