Mediation, Collaborative Negotiation, and Arbitration

Going to court to resolve a family law dispute can be stressful and expensive. Learn how mediation or collaborative practice can be used to resolve issues without going to court.

Understand the legal framework

In a family law dispute, you don’t have to go to court

Most family law disputes involve separating couples. When a couple splits up, they have to sort out how to divide property and debts, who should stay in the family home, and whether one of them will pay support. If there are children, more issues need to be worked out, including where the children will live, how decisions about their care will be made, and how to share time with the children.

Many people think going to court is the only way to resolve these issues. Going to court is sometimes unavoidable — for example, where someone is violent, is threatening to take the children out of town, or is hiding significant property.

But most family law issues can be resolved outside the courtroom. If a couple can work together, they may be able to avoid court proceedings altogether. Two common options that let you avoid court are mediation and collaborative practice.

Mediation involves a neutral person helping the parties agree

In mediation, the people in a conflict meet with a neutral person (a mediator), who helps them find a solution they agree on.

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 make their own decisions.

Usually the mediator is a lawyer or other trained professional. A lawyer mediator, called a family law mediator, can facilitate the settlement process and provide both parties general information about family law.

What to expect with mediation

Mediation is usually less expensive than going to court. 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 a mediation takes

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 perform between meetings, usually to gather additional documents and information.

A settlement agreement

When the mediator is a lawyer, the mediator will usually prepare a written settlement agreement describing how the parties settled the issues 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 should get independent legal advice from a lawyer before they sign the agreement. This involves each party meeting with their own lawyer to get advice about what the agreement means, what rights and obligations the agreement gives to each party, and how the agreement affects other legal options that might otherwise be available.

Collaborative practice features negotiating a settlement collaboratively

Collaborative practice, also known as “collaborative family law”, is a kind of negotiation where each party has their own lawyer and agree they will do everything possible to reach a settlement without going to court.

In fact, the parties typically agree that if either one starts contested court proceedings, their lawyers are disqualified from continuing to act for the parties.

Collaborative practice is centered on the needs of the parties and their children. Communications are usually open and transparent. The approach emphasizes full disclosure, communication, and a safe and respectful environment to help the parties negotiate a settlement collaboratively.

What to expect with collaborative practice

In collaborative practice each party has their own lawyer who is their advocate and supports them through the negotiations.

The parties meet, together with their lawyers, to work towards settling the 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.

Specialists like counsellors, child psychologists, and financial experts may be used to help reach a settlement.

When the parties agree on the issues, the agreement is put into writing by the lawyers. The agreement is signed by the parties and witnessed by someone other than the parties or their lawyers. It is a binding legal contract and can be enforced by the court.

Common questions

When is mediation or collaborative practice not appropriate?

While both approaches are very good ways of resolving family law issues, mediation or collaborative practice aren’t appropriate in all cases. For example, they won’t work well if there has been family violence or child abuse, or if one party won’t participate fairly during the process.

How can I find a mediator?

To find a family law mediator, phone the Lawyer Referral Service at 604-687-3221 in Vancouver or toll-free 1-800-663-1919 elsewhere in BC. A family law mediator is especially useful where the issues to be resolved include how to divide up property and debts.

Family Mediation Canada has a director of family mediators. Call toll-free 1-877-362-2005, or visit their website at www.fmc.ca.

Mediate BC maintains a list of family mediators in British Columbia. Visit mediatebc.com or call toll-free 1-877-656-1300.

Family justice counsellors may be able to help at no cost. Family justice counsellors help people with parenting arrangements or child support disputes in Provincial Court. Phone 604-660-2421 in the Lower Mainland, 250-387-6121 in 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. You can also visit the BC government’s Family Justice website at www.justicebc.ca/en/fam/.

How can I find a lawyer trained in collaborative practice?

Phone the Lawyer Referral Service at 604-687-3221 in the Lower Mainland or 1-800-663-1919 elsewhere in BC.

Visit the BC Collaborative Roster Society’s website at bccollaborativerostersociety.com and search for collaborative lawyers nearby.

Visit Collaborative Divorce Vancouver’s website at collaborativedivorcebc.org for the name of a member lawyer. All members of the association receive both collaborative practice and mediation training.

In the Lower Mainland, visit the Collaborative Association’s website at nocourt.net for a list of participating professionals.

In Victoria, contact the Collaborative Family Separation Professionals for the name of a member lawyer. Call 250-704-2600 or visit collaborativefamilylawgroup.com

In Kelowna and the Okanagan, contact the Okanagan Collaborative Family Law Group at collaborativefamilylaw.ca.

In the West Kootenays, call 1-866-926-1881 and visit www.resolutionplace.ca or www.nocourt.ca for more information on contact Resolution Place at resolutionplace.ca or the Collaborative Law Group of Nelson at nocourt.ca.

Also check the BC Family Law Unbundling Roster at unbundling.ca for family lawyers and paralegals open to being hired for discrete tasks on a family law matter.

What questions should I ask the mediator or collaborative lawyer?

To help decide on a mediator or collaborative lawyer, you may want to meet with a few and ask some questions. For example:

• Do they belong to any professional organizations for mediators or collaborative family lawyers?
• What kind of training have they received, and how long have they practiced as a mediator or collaborative lawyer?
• What kinds of family law issues do they handle? (Some mediators, for example, may only deal with child custody and access disputes. Other only deal with financial or property issues.)
• How much will it cost?

Can the agreement be changed?

An agreement made after a mediation or collaborative process can be changed in two ways:

• if both parties agree to change it, or
• if a court sets the agreement aside.

If the parties want to change the agreement, they can go back to mediation or a collaborative process to discuss the potential changes. Alternatively, they can go to court. Although a 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.

[updated May 2017]

The above was last reviewed for legal accuracy by Zahra H. Jimale, Jimale Law Corporation.

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