Mediation is a negotiation that is helped by a neutral third party called a mediator. The mediator helps the people in a dispute to discuss the topics and come to an agreement.
As with negotiation, in mediation the parties speak directly to each other to try to come to an agreement; however, mediation includes a mediator who basically manages and guides the conversation. Often people try negotiating directly with each other first; when that doesn’t work, they will consider using a mediator.
A mediator is not a judge and does not tell the people what will happen in court. The mediator also cannot give you legal advice. The mediator will not make any decisions for you – it is up to you to make your own decisions.
When to use mediation?
Mediation may be used at any time. Sometimes people use mediation soon after a claim has been filed in court. Others use mediation when they get very close to a trial. Mediation may also be used before someone has gone to court. Sometimes there is no need to go to court if mediation is used and the parties come to an agreement.
Key characteristics of family mediation:
- Voluntary: Mediation is usually a voluntary process so both parties must be willing to engage in mediation.
- Confidential: Mediation is confidential, which means that generally speaking, what is said in mediation stays in mediation. The discussions that take place in mediation are without prejudice to the parties and may not be used in their legal proceedings.
- Impartial and neutral mediator: The mediator is not there to pick sides. They are unbiased and are usually chosen by agreement of the parties.
In mediation, the main goal is for both parties to negotiate an agreement. Ideally, participants bring a collaborative and cooperative attitude to the process.
Going to court, is very different. With litigation, the aim of each party is maximize their legal rights before a decision maker (a judge). Participants often try to gain an advantage through an adversarial approach.
When it comes to family matters, collaboration and cooperation is a much better foundation for successful long-term parenting, especially compared to gain advantage as an adversary (opponent).
Benefits of mediation
- Mediation is quick – most mediations are easily scheduled (depending on the schedules of the parties and the mediator.) Complex cases may take more time.
- Mediation saves money – cases that resolve at mediation will put an end to the litigation, thereby avoiding further costs (court costs, legal costs, etc.).
- Mediation puts the decision-making power into the hands of the parties – this allows for people to craft agreements that benefit both. This is in contrast to having a judge or other decision maker make a decision, which puts it out of the control of the parties.
- Mediation is informal – it allows parties to talk to one another directly and to understand each other’s interests and concerns. It is much more relaxed than going to court.
Drawbacks of mediation
- Mediation may end up being an additional cost – if the mediation does not result in an agreement, the parties have to continue to litigate or try to negotiate an agreement. However, even if a mediation does not end up in an agreement, the parties often are able to exchange information or make progress which creates the foundation for an agreement down the road.
- In some cases, the issues are so complex they require a decision-maker to impose a result. In those cases, mediation may not be beneficial.
When is mediation not appropriate?
- When one of the parties is not willing to mediate (unless there is a Notice to Mediate).
- When one or both of the parties is not willing to share information that is needed to negotiate a fair agreement, such as financial information.
- Sometimes when there is or was violence or abuse between the parties. The mediator will assess this situation with pre-mediation discussions with each party before any joint mediation session is held.
Overall benefit to families
When it is appropriate, mediation is very beneficial for families because if you have a positive mediation experience, it can lead to a positive co-parenting relationship overall.
Finding a Mediator
Free mediation services:
- Family Justice Counsellors can mediate issues regarding guardianship, parenting arrangements, contact and support.
- The Legal Services Society offers a free mediation services (for those that qualify) for the first 6 hours, followed by fee-paid services charged on a sliding scale based on financial situation.
- Family mediators in private practice can mediate a wide range of matters related to family separation, including issues related to property division. When you are choosing a mediator, a good place to start is to review the mediators on the Mediate BC Family Roster.
Some factors to consider when choosing a mediator:
- How much does the mediator charge?
- Where does the mediator work? Close to your home or place of work? Many mediators do distance mediation (using the phone, Skype, etc.) so it may not be necessary to live near the mediator.
- Experience or familiarity with the topics that you want to discuss. For instance, you may want someone who has expertise in child development or working with families with special needs children, or experience with separations involving a family businesses.
- What is the mediator’s availability? Is the mediator flexible, e.g. does the mediator work evenings or weekends?
- Remember that mediators do not need to be lawyers. They can come from all kinds of backgrounds, e.g. business persons, counsellors, psychologists, etc.