Family mediation often a faster, more cost-effective divorce path
By Reid Fraser
Mediating your family law dispute is not only faster and more cost-effective than going to court; it also gives parties the flexibility to create an outcome that suits their specific circumstances.
While family law mediation is not mandatory in British Columbia, there is an emphasis by the courts for parties to make genuine efforts to resolve their disputes outside of the courtroom. And for a good reason — litigation can take a considerable amount of time and can have a high financial and emotional cost.
How mediation works
Mediation is a dispute resolution process where you and your spouse work with a specially trained, neutral third party to reach an agreement. A mediator does not make decisions for you but instead assists couples in resolving their issues.
Typically, the mediator has many years of experience as a family law lawyer but has undergone additional and specialized dispute resolution training. They have specialized skills allowing them to tailor a mediation for different relationships and circumstances.
It is important to note however that mediation does require some form of cooperation or at least efforts made by both parties. If a party is unwilling to participate, mediation is unlikely to prove beneficial and could be a waste of time and money. Both parties need to have some level of commitment to the process in order for mediation to be successful.
That said, in some circumstances the court will ask if you have attended mediation (for example, at a Judicial Case Conference) and in the event that you have not, the court may order you to do so. That means that while the mediation may not prove successful, attempting it at the outset may expedite your overall process.
The first step in mediation is choosing a mediator, which our firm can help you with. After that, there is a pre-mediation meeting where the mediator speaks with each party and their lawyer separately to touch on any specific concerns and understand your goals for resolving the dispute. Your lawyer will prepare a detailed mediation brief, setting out the evidence, your position, what you are seeking, and any response to the other party’s statements.
High-conflict situations
Mediation can still prove beneficial even in high-conflict situations. For example, you and your partner could go into breakout rooms and/or do a shuttle mediation.
Shuttle mediation is where the mediator goes back and forth between the parties’ individual rooms and you and your ex-spouse never need to sit across the table from each other. While it can take significantly more time and effort on everyone’s part, it can be less confronting, hostile, and emotional. You and your ex-spouse still have the benefit of the mediator’s opinion, your counsel being present, and being able to come to a unique agreement that suits your circumstances without having to be in the same room.
When mediation isn’t appropriate
There are certain situations where your lawyer may not recommend mediation. For example, if there is a history of domestic violence or abuse, or if you have an urgent matter that needs resolving, mediation may not be appropriate.
As well, if there are questions of law to be decided, mediation may not be the best starting point. For example, if the parties disagree about when the relationship started the discrepancy could make a significant difference regarding entitlement to pension contributions, property division, and other large issues in your case. While mediation may be beneficial at a later date it may be best to determine the matters of law first and canvas the appropriateness of mediation after the fact.
Flexible outcomes
As mentioned, the mediation process is flexible and can be customized according to the personalities and issues. The outcome of meditation is also flexible and can deviate from what a judge might order, which is one of its most significant benefits.
The outcome can therefore suit the parties’ unique circumstances — whether it’s the timing for the sale of a property or producing an out-of-the-norm parenting schedule. The ideal result is that parties can come to an agreement that suits them. One spouse can concede one issue while the other can concede somewhere else.
Most people can benefit from meditation, but for parties with children, who will have an ongoing relationship for years, the skills learned through the process are especially beneficial.
Generally, mediators provide excellent communication tips and helpful tools in order to help you and your ex-spouse co-parent and move forward. Additionally, if you and your ex are successful in mediation, it proves that you both came to an issue opposed, worked through the problems and reached an agreement. That may prove helpful in the future when you have to make a decision together.
*This post is not intended to be legal advice and should not be taken as such. Please contact McConnan Bion O’Connor & Peterson if you have any questions regarding this post or require assistance or legal advice regarding a cohabitation agreement.