Mediation, Collaborative Negotiation, and Arbitration

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]

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In law, to formally deliver documents to a person in a manner that complies with the rules of court. Service may be ordinary (mailed or delivered to a litigant's address for service), personal (hand-delivered to a person), or substituted (performed in a way other than the rules normally require). See "address for delivery," "ordinary service," "personal service" and "substituted service."

A person who is younger than the legal age of majority, 19 in British Columbia. See "age of majority."

In family law, the dwelling occupied by a family as their primary residence. See "family property" and "real property."

A term under the Family Law Act referring to property acquired by either or both spouses during their relationship, as well as after separation if bought with family property. Both spouses are presumed to be entitled to share equally in any family property. See "excluded property."

A term under the Family Law Act referring to debt owed by either or both spouses that accumulated during the spouses' relationship, as well as after separation if used to maintain family property. Both spouses are presumed to be equally liable for family debt.

In law, response to an allegation of fact or to a claim. Usually refers to documents that reply to the allegations or claims made by the other party, such as a "Response to Family Claim" or a "Reply."

(1) In law, a court proceeding; a lawsuit; an action; a cause of action; a claim. (2) A historic decision of the court; case law. See "action," "case law, " "court proceeding," and "precedent."

Something which can be owned. See "chattels" and "real property."

In family law, the decision of one or both parties to terminate a married or unmarried relationship; the act of one person leaving the family home to live somewhere else with the intention of terminating the relationship. There is no such thing as a "legal separation." In general, one separates by simply moving out, however, it is possible to be separated but still live under the same roof. See "divorce, grounds of."

A resolution of one or more issues in a court proceeding or legal dispute with the agreement of the parties to the proceeding or dispute, usually recorded in a written agreement or in an order that all parties agree the court should make. A court proceeding can be settled at any time before the conclusion of trial. See "action," "consent order," "family law agreements" and "offer."

A dispute resolution process in which a specially-trained neutral person 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."

In law, a person named as an applicant, claimant, respondent, or third party in a court proceeding; someone asserting a claim in a court proceeding or against whom a claim has been brought. See "action" and "litigant."

A person named in a court proceeding or joined to a proceeding who is neither the claimant nor the respondent. A third party may be joined to a proceeding where the respondent believes that the person has or shares some responsibility for the cause of action. See "action," "cause of action" and "party."

A person licensed to practice law in a particular jurisdiction by that jurisdiction's law society. See "barrister and solicitor."

Under the Divorce Act, either of two people who are married to one another, whether of the same or opposite genders. Under the Family Law Act, spouse includes married spouses, unmarried parties who have lived together in a marriage-like relationship for at least two years, and, for all purposes of the act other than the division of property or debt, unmarried parties who have lived together for less than two years and have had a child together. See "marriage" and "marriage-like relationship."

In law, a calculation of the allowable legal expenses of a party to a court proceeding, as determined by the Supreme Court Family Rules. The party who is most successful in a court proceeding is usually awarded their "costs" of the proceeding. See "account," "bill of costs," "Certificate of Costs or Expenses" and "lawyer's fees."

In family law, the process by which an agreement is formed between the parties to a legal dispute resolving that dispute, usually requiring mutual compromise from the parties' original positions to the extent tolerable by each party. See "alternative dispute resolution" and "family law agreements."

(1) In law, a requirement or obligation to honour and abide by something, such as a contract or order of the court. A judge's order is "binding" in the sense that it must be obeyed or a certain punishment will be imposed. (2) The principle that a higher court's decision on a point of law must be followed by a lower court. See "contempt of court" and "precedent."

An agreement between two or more people, giving them obligations towards each other that can be enforced in court. A valid contract must be offered by one person and accepted by the other, and some form of payment or other thing of value must generally be exchanged between the parties to the contract.

A mandatory direction of the court that is binding and enforceable upon the parties to a court proceeding. An "interim order" is a temporary order made following the hearing of an interim application. A "final order" is a permanent order, made following the trial of the court proceeding or the parties' settlement, following which the only recourse open to a dissatisfied party is to appeal. Failing to abide by the terms of an order may constitute contempt of court. See "appeal," "consent order," "contempt of court," "decision" and "declaration."

In family law, an antiquated term used by the old Divorce Act to describe the right to possess a child and make parenting decisions concerning the child's health, welfare and upbringing. Replaced in the new Divorce Act with the term decision-making responsibility." See "access," "decision-making responsibility" and "parenting time."

Under the old Divorce Act, the schedule of a parent's time with their children under an order or agreement, replaced with "parenting time" and "contact" in the new Divorce Act. Access usually referred to the schedule of the parent with the least amount of time with the child. See "contact," "custody" and "parenting time."

Money paid by one parent or guardian to another parent or guardian as a contribution toward the cost of a child's living and other expenses.

A court established and staffed by the provincial government, which includes Small Claims Court, Youth Court, and Family Court. The Provincial Court is the lowest level of court in British Columbia and is restricted in the sorts of matters it can deal with. It is, however, the most accessible of the two trial courts and no fees are charged to begin or defend a family law proceeding. The Family Court of the Provincial Court cannot deal with the division of family property or any claims under the Divorce Act. See "Divorce Act," "judge" and "jurisdiction."