Mediation, Collaborative Negotiation, and Arbitration

This script discusses ways to resolve family law disputes without going to court.

How to avoid going to court?

All sorts of people can have family law issues, including couples who are married, couples who aren’t married, people who have had a child together and anyone, such as a relative, who has an interest in caring for a child. Most family law issues involve separating parents.

When a couple decides to separate, they usually have to make a number of decisions. Where should the child live most of the time? What will the parenting schedule look like? Should support be paid, and if so, to whom and in what amount? Who should stay in the family home? How will the family property and family debt be divided?

Many people believe that going to court is the only way to resolve these issues. However, if the couple can work together they may be able to avoid court altogether. Going to court is sometimes unavoidable, which might be the case if someone was threatening to hide property, be violent or take the child out of town. Apart from urgent problems like these, most family law issues can be resolved out of court.

People who can work together despite their separation can try to negotiate a settlement between them. If this won’t work, the most common options are:

• Mediation
• Collaborative settlement processes

What is “mediation”?

In mediation, couples work together to identify and resolve the problems arising from the separation with the help of a neutral third party, a mediator. Usually the mediator is a lawyer or another trained professional. A lawyer mediator, called a Family Law Mediator, cannot provide independent legal advice to either party, but can provide some general information about family law and facilitate the settlement process.

The mediator will listen to what’s important to each party, ask for their opinions on the issues, and help them to come to their own solutions for the future. If parties have a child, the mediator will help them to make decisions that are in the child’s best interest. The mediator won’t make decisions for the parties; the mediator helps them to make their own decisions.

How to prepare for mediation?

Before hiring a mediator, each party may wish to get independent legal advice from a lawyer. The lawyer can give an idea about the range of potential outcomes, explain what to expect at the mediation and suggest what documents may be useful to take to the first mediation session.

How much does mediation cost?

Mediation is usually less expensive than going to court with a lawyer. When parties first contact a mediator, the mediator will discuss the costs and the process. Mediators usually charge an hourly rate and people usually split the mediator’s costs between them.

How long does mediation take?

Mediation meetings are normally two to six hours long. There is usually more than one meeting, depending on how many issues need to be resolved and how complicated those issues are. Sometimes the mediator will meet with one or each party separately. The mediator may also give parties extra tasks to be performed between meetings, usually to gather additional documents and information.

Who prepares the agreement?

When the mediator is a lawyer, the mediator will usually prepare a written document describing the settlement reached through mediation; the written document can be a written agreement or minutes of settlement. When the mediator is not a lawyer, a party’s lawyer will usually prepare the agreement. Regardless of who writes the agreement, each party needs to get an independent legal advice from a lawyer before they sign the agreement. It is very important to understand exactly what the agreement means and how it affects each party’s legal rights and obligations.

What are “collaborative settlement processes”?

Collaborative settlement processes (also known as collaborative divorce law) are a kind of negotiation where the parties work with lawyers and agree that they will do everything possible to reach a settlement without going to court. The parties and the lawyers work together to find a settlement. Specialists like counsellors, child psychologists and financial experts may be used to help find a settlement. Collaborative processes are centered on the parties’ needs and their child’s needs. Communications are usually open and transparent. Usually, the parties and their lawyers will meet to discuss the issues and negotiate an agreement.

How long do collaborative processes take to resolve matters?

More than one meeting will be required to come to an agreement on all issues. The number of meetings required will depend on how many issues need to be resolved and how complicated they are. Occasionally an agreement is reached after only one meeting between the parties and their lawyers.

Is an agreement reached through mediation or collaboration binding?

The agreement, if written, signed by both parties and the signature is witnessed by someone other than the parties, is a binding legal contract and can be enforced by the court.

Can the agreement be changed?

Separation agreements can only be changed if parties agree or if the court sets all or just part of the agreement aside. If parties agree to change the agreement or talk about changing the agreement, they can go back to mediation or a collaborative process to discuss the potential changes. Alternatively, they can go to court. Although the court will generally be reluctant to change an agreement that was fairly negotiated, the court may make an order on different terms if there was an important change in circumstances after the agreement was signed that was not expected when the agreement was negotiated.

When is mediation or collaborative process not appropriate?

While these are very good ways of resolving family law issues, they may not be appropriate if there has been family violence or child abuse, or if the other party won’t participate fairly during the process. To determine if either of these processes are best for your case, please consult a lawyer.

How to find a qualified and experienced mediator?

• For a Family Law Mediator, phone the Lawyer Referral Service at 604.687.3221 in Vancouver or 1.800.663.1919 toll-free elsewhere in BC. A Family Law Mediator is especially useful if one of the family law issues is dividing up the assets and property.

• Call Family Mediation Canada at 1.877.362.2005 (toll-free) and ask for a list of the closest family mediators. Their website is www.fmc.ca.

• Contact the Mediate BC Society, which maintains a list of family mediators. Call 1.888.713.0433 or click on www.mediatebc.com.

• Family Justice Counsellors may be able to help at no cost. Family Justice Counsellors typically help people with custody, access, guardianship or child support disputes in Provincial Court. Phone 604.660.2421 in the lower mainland, 250.387.6121 in Greater Victoria or toll-free 1.800.663.7867 elsewhere in BC, and ask to speak with a Family Justice Counsellor in the nearest Family Justice Centre. Also, see the Family Justice website at www.justicebc.ca/en/fam/.

How to find a lawyer trained in collaborative settlement processes?

• Phone the Lawyer Referral Service at 604.687.3221 in the lower mainland or 1.800.663.1919 elsewhere in BC.

• Visit BC Collaborative Roster Society’s website at www.bccollaborativerostersociety.com and search for collaborative lawyers or other collaborative professionals nearby.

• Visit Collaborative Divorce Vancouver’s website at www.collaborativedivorcebc.org for the name of a member lawyer, as well as for names of other collaborative professionals. All members of the association have received both collaborative family law and mediation training.

• In the lower mainland, visit Collaborative Association’s website at www.nocourt.net for more information and list of professionals.

• In Victoria, call 250.704.2600 or go to www.collaborativefamilylawgroup.com for information on the Collaborative Family Law Group of Victoria and the name of a member lawyer.

• In Kelowna and the Okanagan area, check the Okanagan Collaborative Family Law Group at www.collaborativefamilylaw.ca.

• In West Kootenays, call 1.866.926.1881 and visit www.resolutionplace.ca or www.nocourt.ca for more information on Resolution Place and the Collaborative Law Group of the Nelson.

• Also, check the BC Family Law Unbundling Roster for family lawyers and paralegals willing to perform discrete tasks for clients.

What questions should parties ask the mediator or collaborative lawyer?

When parties have the names of some mediators or collaborative lawyers, they may want to ask each of them the following questions before deciding whom to hire:

• Does the person belong to any professional organizations for mediators or collaborative family law lawyers?

• Is the person a lawyer or a mental health professional?

• What kind of training has the person received, and how long have they practiced as a mediator or collaborative lawyer?

• What kinds of mediation or collaborative family law issues do they handle? (Some mediators, for example, may only deal with child custody and access disputes. Other only deal with financial and/or property issues.)

• How much will it cost?

[updated May 2017]

The above was last reviewed for accuracy by Zahra H. Jimale.

This script discusses ways to resolve family law disputes without going to court.

How can you avoid going to court?

All sorts of people can have family law disputes, including couples who are married, couples who aren’t married, people who have had a child together and anyone, such as a relative, who has an interest in a child. Most family law disputes involve separating parents.

When a couple decides to separate, they usually have to make a number of decisions. Where should the children live most of the time? What will the parenting schedule look like? Should support be paid, and if so, to whom and in what amount? Who should stay in the family home? How will the family property and family debt be divided?

Many people believe that going to court is the only way to answer these questions. However, if the couple can work together they may be able to avoid court altogether. Going to court is sometimes unavoidable, which might be the case if someone was threatening to hide property, be violent or take the children out of town. Apart from urgent problems like these, most family law disputes can be resolved out of court.

People who can work together despite their separation can try to negotiate a settlement between them. If this won’t work, the most common options other are:

• Mediation
• Collaborative settlement processes

What is “mediation”?

In mediation, you and the other party will work together to identify and resolve the problems arising from your separation with the help of a neutral third party, a mediator. Usually the mediator is a lawyer or another trained professional. If you see a lawyer mediator (called a Family Law Mediator), he or she cannot give you individual legal advice, but can give you general information about family law.

The mediator will listen to what’s important to each of you, ask for your opinions on the issues, and help the two of you come to your own solutions for the future. If you have children, the mediator will help you make decisions that are best for them. The mediator won’t make decisions for you; the mediator helps you to make your own decisions.

How do you prepare for mediation?

Before you hire a mediator, you and your spouse may wish to meet separately with your own lawyers, who can give you an idea about the range of potential outcomes and will tell you what to expect at the mediation and what documents you may need to take with you to the first session.

How much does mediation cost?

Mediation is usually a lot less expensive than going to court if you go to court with a lawyer. When you first meet with a mediator, the mediator will discuss the costs with you and your spouse. Mediators usually charge an hourly rate and people usually split the mediator’s costs between them.

How long does mediation take?

Mediation meetings are normally two to six hours long. There is usually more than one meeting, depending on how many issues need to be resolved and how complicated those issues are. Sometimes the mediator will meet with one or each of you separately. The mediator may also give you extra tasks to be performed between meetings, usually to gather additional documents and information.

Who prepares the agreement?

When the mediator is a lawyer, the mediator will usually prepare a written agreement describing the settlement reached through mediation. When the mediator is not a lawyer, your lawyer will prepare the agreement. Regardless of who writes the agreement, you need to get advice from a lawyer before you sign it. It is very important that you understand exactly what the agreement means and how it affects your legal rights and obligations.

What are “collaborative settlement processes”?

Collaborative settlement processes are a kind of negotiation where the parties work with lawyers and agree that they will do everything possible to reach a settlement without going to court. The parties and the lawyers work together to find a settlement. Specialists like counsellors, child psychologists and financial experts may be used to help find a settlement. Collaborative processes are centered on your needs and your children’s needs, and communications are open and transparent.

How long do collaborative processes take to resolve matters?

More than one meeting will be required to come to an agreement on all issues. The number of meetings required will depend on how many issues need to be resolved and how complicated they are. Occasionally an agreement is reached after only one meeting between the parties and their lawyers.

Is an agreement reached through mediation or collaboration binding?

Your agreement is a legal contract and binding on you and the other party and can be enforced by the court.

Can the agreement be changed?

Separation agreements can only be changed if you and the other party agree or if the court sets all or just part of the agreement aside. If you agree to change the agreement or talk about changing the agreement, you and your spouse can go back to mediation or a collaborative process to discuss the potential changes. Alternatively, you can go to court. Although the court will generally be reluctant to change an agreement that was fairly negotiated, the court may make an order on different terms if there was an important change in circumstances after the agreement was signed that wasn’t expected when the agreement was negotiated.

When are mediation or collaborative processes not appropriate?

While these are very good ways of resolving family law issues, they may not be appropriate if there has been family violence or child abuse, or if the other party won’t participate fairly during the process.

How can you find a qualified and experienced mediator?

• For a Family Law Mediator, phone the Lawyer Referral Service at 604.687.3221 in Vancouver or 1.800.663.1919 toll-free elsewhere in BC. A Family Law Mediator is especially useful if one of your issues is dividing up the assets and property.
• Call Family Mediation Canada at 1.877.362.2005 (toll-free) and ask for a list of family mediators in your area. Their website is www.fmc.ca.
• Contact the Mediate BC Society, which maintains a list of family mediators. Call 1.888.713.0433 or click on www.mediatebc.com.
• Family Justice Counsellors may be able to help at no cost. Family Justice Counsellors typically help people with custody, access, guardianship or child support disputes in Provincial Court. Phone 604.660.2421 in the lower mainland, 250.387.6121 in Greater Victoria or toll-free 1.800.663.7867 elsewhere in BC, and ask to speak with a Family Justice Counsellor in the Family Justice Centre nearest you. Also see the Family Justice website at www.justicebc.ca/en/fam/.

How can you find a lawyer trained in collaborative settlement processes?

• Phone the Lawyer Referral Service at 604.687.3221 in the lower mainland or 1.800.663.1919 elsewhere in BC.
• Visit BC Collaborative Roster Society’s website at www.bccollaborativerostersociety.com. You can search for collaborative lawyers or other collaborative professionals nearby.
• Visit Collaborative Divorce Vancouver’s website at www.collaborativedivorcebc.org for the name of a member lawyer, as well as for names of other collaborative professionals. All members of the association have received both collaborative family law and mediation training.
• In the lower mainland, visit Collaborative Association’s website at www.nocourt.net for more information and list of professionals.
• In Victoria, call 250.704.2600 or go to www.collaborativefamilylawgroup.com for information on the Collaborative Family Law Group of Victoria and the name of a member lawyer.
• In Kelowna and the Okanagan area, check the Okanagan Collaborative Family Law Group at www.collaborativefamilylaw.ca.
• In West Kootenays, call 1.866.926.1881 and visit www.resolutionplace.ca or www.nocourt.ca for more information on Resolution Place and the Collaborative Law Group of the Nelson.

What questions should you ask the mediator or collaborative lawyer?

When you have the names of some mediators or collaborative lawyers, you may want to ask each of them the following questions before deciding whom to hire:

• Does the person belong to any professional organizations for mediators or collaborative family law lawyers?
• Is the person a lawyer or a mental health professional?
• What kind of training has the person received, and how long have they practiced as a mediator or collaborative lawyer?
• What kinds of mediation or collaborative family law issues do they handle? (Some mediators, for example, may only deal with child custody and access disputes. If you want to mediate financial and/or property issues, you’ll want a Family Law Mediator who has training and experience in that field.)
• How much will it cost?

[updated October 2014]

The above was last reviewed for accuracy by JP Boyd and Anna Kurt.

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