For starters, mediation is a cost-effective and time-saving approach to resolving disputes. In order to obtain these savings, the parties must be willing and able to participate, to listen, and to learn. Mediation is an opportunity to improve relationships, especially when a relationship is changing. Remember that while change is often unsettling, it can also be a blessing in disguise.
The Process
The first step is to speak with a qualified family law mediator. These professionals have special training to determine which cases are appropriate for mediation. If there is a history of family violence, high conflict, or power imbalance, mediation may not be recommended.
Prior to attending mediation, each party should speak with a lawyer to get a sense of the legal rights and obligations that apply to the topics under discussion. In complex cases, the parties may elect to bring their lawyers with them to mediation.
The mediation process is usually a series of sessions, each lasting about three hours. The typical family law mediation requires three to five sessions. One reason for multiple sessions is to allow time for the parties to obtain financial information and documentation. Breaking the mediation into sessions helps to maintain productivity and to avoid negotiation fatigue. However, lawyer and client mediation is often conducted as a full day event, with periodic short breaks. This is possible because the lawyers will have already compiled the necessary information and supporting documents.
In the first session, the mediator will work with the parties to build an agenda. This is a list of issues that the parties want to resolve. The parties must agree on the agenda before exploring any of the issues. Once the agenda is set, the mediator invites one party to begin with the first agenda item. In turn, each party will explain what is important to him or her about each agenda item.
Exploring the issues is the meat of the family mediation process. Exploration may last through a few sessions as the parties realize what information is missing from the discussion and must be obtained from third parties (e.g. account statements, pension documents, valuations). This is not the time to suggest solutions. It is a time for exploring your own needs and listening to the needs of others.
Finally, the mediator will let you know when it is time to brainstorm solutions. This is the last stage of the process and results in the terms of your agreement.
Interest-based Negotiation
Family law mediation in BC follows the interest-based negotiation framework. The process, summarized above, helps the parties understand what types of proposals are likely to be accepted by the other party. The key is in understanding your assumptions. We all have them.
If you are like most people confronted with separation or divorce, you will develop a position rather quickly about what you think should happen. A position is ‘what you want’. This is different than an interest. In the context of mediation, an interest is ‘the why’ behind what you want. Your interests are those needs, desires, concerns, hopes, and fears that drive you.
Interest-based negotiation is a problem-solving strategy that focuses on addressing underlying interests. This strategy challenges participants to ask: ‘What is important to me about my position on this issue?’ In answering this question, you will unlock opportunity, understand what compromises you can live with, and achieve mutually acceptable solutions.
Independent Legal Advice
After agreeing to mediate, the next step is for each party to talk to their own lawyer. This is called ‘independent legal advice’ or ILA. It’s important because you need to understand your rights and your legal responsibilities in order to start negotiating on a level playing field. Keep in mind that mediators do not provide legal advice, even when your mediator is also a lawyer.
ILA is affordable. You do not need to enter into a retainer agreement. You just need 1-2 hours of time from a lawyer who is not conflicted (meaning the lawyer does not work for any of the other parties involved). Your ILA is your opportunity to prevent selling yourself short. It also helps you see the hidden factors likely to cause problems later. If you want an enforceable agreement that won’t bite you in the rear, make sure the agreement is backed by proper ILA.
Question: Is it more cost-effective to wait to see a lawyer, once we have an agreement?
A: No. Get advice upfront before you waste time negotiating down the wrong rabbit hole.
Question: My ex-partner won’t pay for ILA. Can I pay for them?
A: Good question. This does cause problems for people. One option is to suggest to the ex- that s/he pick a lawyer, that s/he make the appointment, and that you will provide cash to the law office when payment is due. Avoid picking a lawyer for your ex- as this may be seen as undue influence.
You’ll Be the Judge
The process of mediation is not easy. It takes time, effort, compromise, and creativity. It is both easier and harder than going to court (or arbitration). Mediation is easier because you do not need to prepare legal arguments. It’s harder because you have the responsibility of deciding your own fate. As difficult as this is, it is often the happier, healthier, and more successful outcome for everyone.