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Difference between revisions of "Family Law Mediation"
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As well, the parties may need further additional input and information from people such as child psychologists, accountants and the like. If these people are needed to help settle matters, there may be an additional waiting period while these experts conduct their investigations and prepare their reports. | As well, the parties may need further additional input and information from people such as child psychologists, accountants and the like. If these people are needed to help settle matters, there may be an additional waiting period while these experts conduct their investigations and prepare their reports. | ||
===Exchanging | ===Exchanging briefs=== | ||
Where the parties are represented by lawyers, the mediator may ask the lawyer to prepare | Where the parties are represented by lawyers, the mediator may ask the lawyer to prepare ''mediation briefs''. Mediation briefs are summaries of the parties' relationship and each party's position and, when a position is legally complex or technical, an explanation of the law or facts supporting that position. The lawyers will give copies of their briefs to each other and to the mediator ahead of the first mediation session. | ||
===Mediating the | ===Mediating the dispute=== | ||
Once all the information, reports and briefs have been gathered and exchanged, and everybody | Once all the information, reports and briefs have been gathered and exchanged, and everybody has had a chance to digest everything, the parties, the lawyers and the mediator will meet at one or more mediation sessions. The mediator will first welcome everyone to the table, and ask the parties to sign a mediation participation agreement before anything else happens. The mediation agreement sets out the terms of the mediation sessions, requires the parties not to use the discussions held during mediation in any litigation, and describes the terms on which the mediator will be paid. | ||
After signing the mediation agreement, each mediator will have his or her own preferred way of doing things. Most will ask someone to provide a general overview of the relationship and describe what exactly is at issue. Each party will have the opportunity to state their position on things. If lawyers are being used, they will inevitably do most of the talking, but the parties themselves will have ample opportunity to speak their minds... and they really should, it's their dispute! | After signing the mediation agreement, each mediator will have his or her own preferred way of doing things. Most will ask someone to provide a general overview of the relationship and describe what exactly is at issue. Each party will have the opportunity to state their position on things. If lawyers are being used, they will inevitably do most of the talking, but the parties themselves will have ample opportunity to speak their minds... and they really should, it's their dispute! | ||
Once this initial exchange of positions is complete, the mediator may keep everyone in the same room or may split the parties into separate rooms. If the parties are kept together, the mediator will press on and work on the problem issue by issue. The mediator will keep some control over how the discussion flows, tamp the emotions down when things get heated, and keep everyone focussed on their interests and the law rather than their emotions and the grievances of the past. If the parties are split into separate rooms, the mediator will alternate working with each party and will shuttle between each of the rooms. | Once this initial exchange of positions is complete, the mediator may keep everyone in the same room or may split the parties into separate rooms. If the parties are kept together, the mediator will press on and work on the problem issue by issue. The mediator will keep some control over how the discussion flows, tamp the emotions down when things get heated, and keep everyone focussed on their interests and the law rather than their emotions and the grievances of the past. If the parties are split into separate rooms, the mediator will alternate working with each party and will shuttle between each of the rooms. You may hear people call this style ''shuttle mediation''. | ||
Assuming the mediation process is successful, the mediator will often prepare a list describing how each issue has been resolved called | Assuming the mediation process is successful, the mediator will often prepare a list describing how each issue has been resolved called ''minutes of settlement''. The minutes are usually rather informal and are meant to record the bare bones of the settlement in the expectation that a more complete document, like a separation agreement or a consent order, will be prepared in the future. The parties and sometimes their lawyers will be asked to sign the minutes to acknowledge the settlement that was reached. | ||
===Formalizing the | ===Formalizing the settlement=== | ||
The final stage involves the putting the terms of the agreement into more formal language in a legal document which both parties, or, depending on the type of document, their lawyers will sign. Typically, a settlement will be recorded as a separation agreement or, if there is an existing court proceeding or the parties need to get divorced, an order that the parties agree the court should make. | The final stage involves the putting the terms of the agreement into more formal language in a legal document which both parties, or, depending on the type of document, their lawyers will sign. Typically, a settlement will be recorded as a separation agreement or, if there is an existing court proceeding or the parties need to get divorced, an order that the parties agree the court should make. | ||
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If a party changes his or her mind before the separation agreement or consent order is filed, the minutes of settlement can be enforced in court as evidence of the deal reached between the parties. In fact, in certain circumstances the mediator's notes alone may stand as proof of the parties' agreement. As long as it is plain what has been agreed to and that the intentions of the parties were finally settled, the minutes or the mediator's notes can be used as evidence of a binding agreement. | If a party changes his or her mind before the separation agreement or consent order is filed, the minutes of settlement can be enforced in court as evidence of the deal reached between the parties. In fact, in certain circumstances the mediator's notes alone may stand as proof of the parties' agreement. As long as it is plain what has been agreed to and that the intentions of the parties were finally settled, the minutes or the mediator's notes can be used as evidence of a binding agreement. | ||
Note that if you are relying on a mediated settlement in court, it is important that the settlement be conclusive and leaving nothing else for further negotiation or confirmation. In the 2005 British Columbia Supreme Court case of ''Alcock v. Alcock'', the court held that the parties couldn't rely on an agreement that was "subject to confirmation" as a final, binding agreement. In that case, the agreement was subject to the wife producing financial information which, when produced, did not confirm the information provided at mediation. | Note that if you are relying on a mediated settlement in court, it is important that the settlement be conclusive and leaving nothing else for further negotiation or confirmation. In the 2005 British Columbia Supreme Court case of ''[http://canlii.ca/t/1q34b Alcock v. Alcock]'', 2005 BCSC 603 (CanLII shows this case under ''S.A.A. v. P.W.J.A.''), the court held that the parties couldn't rely on an agreement that was "subject to confirmation" as a final, binding agreement. In that case, the agreement was subject to the wife producing financial information which, when produced, did not confirm the information provided at mediation. | ||
==Tips for successful mediation== | ==Tips for successful mediation== | ||
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In mediation, as in all other forms of negotiation, the goal is to produce a fair agreement in an efficient and cooperative way. There are lots of things you can do that will hinder this process and other things you can do that will help. The following are a few tips on how to make mediation work for you. | In mediation, as in all other forms of negotiation, the goal is to produce a fair agreement in an efficient and cooperative way. There are lots of things you can do that will hinder this process and other things you can do that will help. The following are a few tips on how to make mediation work for you. | ||
#Remember that the more you argue about a particular position of yours, the more you wind up being stuck with that position. Many people find that after they've argued a particular point to death, they're stuck with it because they can't back down without losing face. Try to focus on interests rather than on positions, and to always ask yourself "Why not?" when you hear what the other side has to say. | |||
#One of the most important skills you can bring to your mediation session is the ability to actively listen to what the other side is saying. Active listening involves paying close attention to what the other side is saying, and restating his or her position to ensure that you know what the other side means and to ensure that the other side recognizes that you're hearing what he or she is saying. Phrases like "What I hear you saying is..." and "If I understand you correctly, what you're saying is..." can be extremely helpful. At the same time, you must also take some care in how you choose to express yourself. Instead of saying "You did..." or "You're a...," trying something like "When you did that I felt..." or "I feel that..." This may all seem a bit flaky, but believe it or not it works. | |||
#You must be able to talk directly about a problem in an assertive, direct manner. Talk about the issues; don't skirt around them, no matter how uncomfortable or awkward you might feel. Take care in how you express yourself, but when you're in a private session with the mediator, don't mince words. | |||
===Things to do=== | |||
===Things to | |||
The following points boil down to just a few central ideas: respect yourself and the other side; be flexible and avoid taking absolute positions; and, be honest and open. When you go into the mediation session, try to have a few options prepared, a few other alternatives which you might be happy with, rather than a single fixed, rigid goal. | The following points boil down to just a few central ideas: respect yourself and the other side; be flexible and avoid taking absolute positions; and, be honest and open. When you go into the mediation session, try to have a few options prepared, a few other alternatives which you might be happy with, rather than a single fixed, rigid goal. | ||
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* Watch your body language! Making disgusted grunts, rolling your eyes or slamming your fist on the table won't help anything. | * Watch your body language! Making disgusted grunts, rolling your eyes or slamming your fist on the table won't help anything. | ||
===Things | ===Things not to do=== | ||
Suspicion and dishonesty will damage the mediation process, sometimes beyond repair. If the mediator doesn't believe you and the other party doesn't believe you, it might be impossible to arrive at a negotiated settlement. Likewise, bitterness, jealousy and resentment can also be triggers that undermine each party's faith in the other and make resolution by a judge at a trial inevitable. | Suspicion and dishonesty will damage the mediation process, sometimes beyond repair. If the mediator doesn't believe you and the other party doesn't believe you, it might be impossible to arrive at a negotiated settlement. Likewise, bitterness, jealousy and resentment can also be triggers that undermine each party's faith in the other and make resolution by a judge at a trial inevitable. | ||
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* Don't play on the other person's sense of guilt or otherwise be emotionally manipulative. | * Don't play on the other person's sense of guilt or otherwise be emotionally manipulative. | ||
==Government | ==Government mediation services== | ||
The provincial government offers mediation for family law disputes through the Family Mediation Practicum Project and the Provincial Court | The provincial government offers mediation for family law disputes through the [http://www.ag.gov.bc.ca/dro/family-mediation/ Family Mediation Practicum Project] and its successor the [http://www.mediatebc.com/PDFs/1-14-Family-Mediation---FAQs/FMSClientBrochSept2012-web.aspx Regional Mentoring Program], both of which are operated by [http://www.mediatebc.com Mediate BC]. There are also [http://www.justicebc.ca/en/fam/help/fjc/index.html family justice counsellors] with the Provincial Court, and they work in [http://www.clicklaw.bc.ca/helpmap/service/1019 Family Justice Centres] across BC. Other agencies and organizations may provide mediation services, like UBC's CoRe Conflict Resolution Centre, however make sure that they can help with family law disputes before trying to get help. | ||
===The Family Mediation Practicum Project=== | ===The Family Mediation Practicum Project=== | ||