Questions about Mediation in BC
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.
The use of mediation is increasing as people become aware of how it can help settle disputes quickly and inexpensively whether done in person or online.
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 which could take place in person or online.
In my experience, when both spouses receive legal information and are supported by the same unbiased person (a qualified mediator), the likelihood of the best possible outcome is much higher and the costs are significantly lower. The legal system is not designed to meet your family’s goals. Lawyers can be a very important part of your support during this process and can participate in a number of different ways at different times in the mediation process.
This will be up to you. In North America approximately 80% of family files are self-represented which means that people have not hired a lawyer and this is consistent with my practice. Some people want the support of a lawyer and they can participate in many ways: attending mediation with their clients, providing information and advice by phone throughout the process or advising on the final agreement made in mediation. It is up to you and your lawyer if you have one to decide how or if your lawyer participates. I always advise people to seek independent legal advice on any agreement made in mediation.
My entire process is designed to be cost-effective and I am happy to provide estimates – please reach out to me to discuss pricing as my estimates will be dependent on your circumstance.
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.
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.
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.
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. When financial disclosure is an issue, I will provide a checklist of financial documents for each participant.
This will be determined based on your circumstance, the number of issues and their level of complexity and the desired timeline for both parties. Some parties prefer to get it all done in one day and other parties prefer a few half day sessions each a few weeks apart so that they are not overwhelmed with homework and big decisions on their own.
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. See my Blog on Do you have to be a lawyer to draft a Separation Agreement?
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.