How Do I Start Mediation with My Spouse?

From Clicklaw Wikibooks

Pick the right moment

With one exception, you can't force your ex to go to mediationA dispute resolution process in which a mediator facilitates discussions between the parties to a legal dispute and helps them reach a compromise settling the dispute. See "alternative dispute resolution" and "family law mediator." with you, you can only do it with his or her agreement. Your ex isn't likely to agree to go and see a mediator if he or she is still pissed off about a recent argumentIn law, an attempt to persuade by logical reasoning. Usually refers to oral or written argument presented to a judge following the presentation of evidence, or to a written summary of argument. or is still resentful about the end of the relationship.

When you've got the right moment, suggesting mediation can be as simple as calling your ex up and inviting him or her out for a cup of coffee at the local Tim Hortons:

"Hey look, I think it's time that we sat down and started to talk about things. I know you're still a bit upset about everything, but we really need to make a few decisions and I don't think we're going to be able to do this on our own. I've asked my friend Sally what happened with her and Frank, and she said that they used a mediator."

At this point, it's all about getting your ex to try mediation, and it's your job to sell the idea. Here are some reasons why mediation is a really, really good idea:

  • mediation is much cheaper than hiring lawyers and going to court,
  • the mediator helps you and your ex make a decision together, a decision that you are both as happy with as possible,
  • the decisionIn law, a judge's conclusions after hearing argument and considering the evidence presented at a trial or an application; a judgment; the judge's reasons. A judge's written or oral decision will include the judge's conclusions about the relief or remedies claimed as well as his or her findings of fact and conclusions of law. A written decision is called the judge’s "reasons for judgment." See "common law," "conclusions of law," and "findings of fact." a judgeA person appointed by the federal or provincial governments to manage and decide court proceedings in an impartial manner, independent of influence by the parties, the government or agents of the government. The decisions of a judge are binding upon the parties to the proceeding, and are subject to appeal. might make may be one that neither of you are happy with at all,
  • mediation is much cheaper than hiring lawyers and going to court,
  • settlements reached through mediation tend to last a lot longer and people tend to respect their agreements a lot more,
  • mediation will leave you feeling less angry with each other than fighting about things in court,
  • mediation is much cheaper than hiring lawyers and going to court,
  • mediation can be over and done with in a fraction of the time that it takes to go to court, and
  • if I haven't mentioned this, mediation is much cheaper than hiring lawyers and going to court.

Going to trialThe testing of the claims at issue in a court proceeding at a formal hearing before a judge with the jurisdiction to hear the proceeding. The parties present their evidence and arguments to the judge, who then makes a determination of the parties' claims against one another that is final and binding the parties unless appealed. See "action," "appeal," "argument," "claim," "evidence" and "jurisdiction." will cost a minimum of $15,000 in lawyer's feesThe money charged by a lawyer to his or her client for the lawyer's services, usually pursuant to the terms of the lawyer's retainer agreement. Most lawyers bill by the hour with a premium for success or the difficulty or novelty of the case. A lawyer's bill may include "disbursements," costs incurred by the lawyer for such things as courier fees, court fees or photocopying expenses. See "account" and "certificate of fees." for a two- or three-day trial. Most family law trials are one or two weeks long, and this figure ignores the costs of all the other things that have to happen before you walk into the courtroom on day one!

If this doesn't get your ex to agree to see a mediator, tell him or her to ask separated friends, family members and co-workers how much it cost for their court proceedings and how long it took to go from start to finish.

The exception I mentioned above is that if you and your partner have already started an Action in Supreme CourtNormally referred to as the "Supreme Court of British Columbia," this court hears most court proceedings in this province. The Supreme Court is a court of inherent jurisdiction and is subject to no limits on the sorts of claims it can hear or on the sorts of orders it can make. Decisions of the Provincial Court are appealed to the Supreme Court; decisions of the Supreme Court are appealed to the Court of Appeal. See "Court of Appeal," "jurisdiction," "Provincial Court" and "Supreme Court of Canada.", you may file a Notice to Mediate under the Notice to Mediate (Family) Regulation. This rule provides a mechanism for forcing parties to try mediation before they can have a trial.


Hire a mediator

Now that your ex has agreed to see a mediator with you, strike while the iron is hot: find a mediator and book an appointment immediately.

Before hiring a mediator, make sure you've looked into his or her background to make sure that the mediator has had special training as a mediator. Lawyers who have training and are accredited to mediate by the Law Society are called family law mediators, and they will usually advertise themselves as such.

When picking a mediator, first ask around. Have any of your friends used a mediator, and what did they think of the mediator? If that doesn't work, call a family law lawyerA person licensed to practice law in a particular jurisdiction. See "barrister and solicitor.". Most family law lawyers keep a short list of the mediators they prefer to use, and will be happy to give you their names and phone numbers.

For more information

You can find out more about using mediation in the chapter Resolving Family Law Problems out of Court.


Creativecommonssmall.png JP Boyd on Family Law © John-Paul Boyd and Courthouse Libraries BC is licensed under a Creative Commons Attribution-NonCommercial-ShareAlike 2.5 Canada Licence.
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