Mediation FAQ’s
- Mediation is a process whereby a neutral third party, the Mediator, assists parties who are in a dispute, to negotiate a resolution to their conflict(s).
- The mediator uses a wide variety of communication and negotiation techniques to guide the process in a constructive direction, and to help the parties find their optimal solution, based upon the specific needs, rights, and interests of the parties.
- Mediation has a structure, timetable, and dynamics that “ordinary” negotiation lacks.
- Parties can mediate disputes in a wide variety of areas, such as commercial/contract disputes, workplace conflicts, online disputes, community disputes, wills and estate matters, divorce, separation, and any number of other family law matters.
- There really is no limit to the types of conflicts and disputes that can be resolved through guided mediation, and mediation can be used to resolve disputes of just about any magnitude.
- Mediation is cheaper, less antagonistic, less formal, and more efficient (faster!) than going to court.
- Negotiation outside of court has an astonishingly high success rate. In British Columbia, 89% of the cases that went to mediation resulted in either a full settlement or a partial settlement of the issues in dispute.
- “Most of the time, when parties go before a Judge or other Court official asking that person to make a decision about their dispute, either at a full trial or in pre-trial motions, there is a significant level of uncertainty and unpredictability about what will happen.”[1]
- Mediation, on the other hand, is a “party-centered” process, meaning that it is the parties themselves, (with the guidance and assistance of the Mediator), who propose solutions and ultimately negotiate the outcome of their dispute and any agreements that result. Therefore, it is the parties themselves, and not a Judge or jury, (or Mediator), who ultimately decide how or if the conflict will be resolved.
- The mediation process is 100% voluntary, meaning that the parties can choose to continue the mediation or stop the process, at any time, regardless of whether a solution has been reached or not. The same cannot be said for a courtroom process which, once commenced, is often very difficult to stop.
- The mediation process is entirely private and confidential, whereas most proceedings that take place in open court are just that – open to the public.
- Also, mediation is usually conducted on a without prejudice basis, meaning that any solutions that are proposed, and anything else that is discussed by or between the parties during the mediation process, cannot be used for or against either party later on, if the parties are unable to reach an agreement or if they ultimately have to resolve their dispute by going to court.
- Parties do not need to have a lawyer to go to mediation. Many very successful mediations can occur simply between the parties themselves and the mediator.
- However, if parties already have a lawyer, we recommend that the lawyer should, at a minimum, be available for consultation by the party(ies) as the mediation process unfolds.
- Our clients are also welcome and encouraged to have their lawyer(s) attend the mediation with them, when and where the client feels that that is necessary or appropriate.
- When you retain a mediator, the mediator acts as a neutral third party in assisting with communication and negotiation. Your mediator may or may not also be a lawyer, however, because a mediator is meant to be neutral, (not favoring any one party over the other), they cannot give you legal advice. They can, however, provide you with general legal information as you walk through each issue, (e.g. “the law says that…”). Because of this, whenever an agreement is reached through the mediation process, the parties are then strongly encouraged to obtain follow-up independent legal advice (from a list of recommended lawyers) before any of them signs off or finalizes any written versions of those verbal agreements.
- Under the laws of British Columbia, only an accredited family law mediator can provide mediation services for family law disputes.
- An accredited family law mediator is a neutral third party with significant knowledge, experience, and training in the areas of: family law, family dynamics, high-conflict disputes, screening for domestic violence, and family mediation. An accredited family law mediator’s training allows them to keep the mediation process safe, fair for all concerned, on track, and moving forward, regardless of the parties’ individual circumstances.
- Whenever there is an emotionally charged or high-conflict dispute between the parties, or where there is a history of family violence, mediation can still proceed provided that the proper safety precautions are taken. Examples of this might include a mediation that occurs entirely online, (via video conference), or a scenario where the parties are physically separated from each other, with the mediator “shuttling back and forth” between separate rooms or locations.
- One of the biggest advantages of mediation is that it allows separating or divorcing parties to come up with highly creative solutions to their disputes that fit their unique circumstances; including solutions that might not even be possible in court. A judges’ solution to any family law problem is limited to only what is prescribed by the applicable legislation and the caselaw that has come before them. This very narrow approach to court-driven problem solving tends to create a “one size fits all” style of resolving extremely complex family conflicts, which often leads to more long-term problems than it solves.
- Another advantage of mediation relates to the fact many family law disputes involve children. Consequently, that means that the disputing parties, (the children’s parents or guardians), will usually have to continue to communicate and interact with one another long after the main issues of the family law dispute have been resolved.
- Whenever children are a part of a separation, divorce, or other family law matter, it is required by law that all decisions relating to child custody, support, access, parenting, etc., etc., take into account the best interest of the child(ren) ahead of all other considerations.
- Court processes are, by design, argumentative, confrontational, and adversarial. Therefore, the court process, by its very nature, tends to only increase animosity and acrimony between the parties, who are also the parents and guardians of these children.
- Mediation, on the other hand, tends to foster open communication, genuine compromise, and overall solutions and settlements that are significantly more acceptable and satisfactory to all the parties involved; because it is the parties themselves who have negotiated and designed these solutions.
- Parties tend to walk away from a negotiated settlement achieved via mediation with significantly less animosity and acrimony towards each other. And, because of this, they are often far more capable of maintaining respectful ongoing relationships with each other, and their children, in a far more productive and positive way over the long term. This result is always in the best interests of the children.
Judges and juries are required to strictly follow the law, however…
- “There are often gaps in the law. The application of decided case law or statutes written laws to the facts of a case, the wrong that has been done, or the remedies sought, may be uncertain. Often, lawyers are drawing analogies from established case law and sometimes those inferences are not crystal clear.
- Early in a dispute, and sometimes even quite late in a dispute, critical facts and information may be missing. This sometimes makes it hard for parties to settle the matter and if this state of affairs continues on into trial, it may make it very difficult to predict what a Judge [or jury] will do.
- Occasionally witnesses who appear quite steady and confident during preparation get a bad case of the nerves in Court and provide weak or unconvincing testimony. One of the greatest causes of unpredictability is not knowing at the end of the day how witnesses will perform.
- In some situations, there can be different but reasonable interpretations of events. Sometimes the facts can be very clear, but the legal concepts that give either the rights or the remedies may be vague or fuzzy enough that it is impossible to predict whether or not the facts support the rights, remedies or defences that are sought.
- In complex, factual matters, it can be difficult to predict which particular facts a Judge [or jury] will rely on. Typically, a Judge [or jury] may be presented with many different facts upon which they could base a decision. It is not at all uncommon when reading the judgments of the Courts to realize that a handful of facts have taken on very large importance to the Judge [or jury]. Sometimes, one can predict what these critical or key facts will be. But sometimes, counsel and parties are surprised to find that a relatively minor fact in their estimation has taken on much more significance for a Judge [or jury].”[2]
[1] “Judges and Outcomes are Unpredictable” – http://limpertlaw.com/resources-articles-presentations/overview-of-canadian-litigation-litigation/judges-outcomes-unpredictable/
Arbitration FAQ’s
- Arbitration is a process whereby a neutral third party, the Arbitrator, listens to the submissions and evidence of the parties involved in a dispute, and then decides the final outcome(s) of each and every one of the issues put forward by the parties.
- In many ways arbitration is almost identical to normal courtroom litigation, (particularly with regard to its finality and enforceability), except that instead of having a Judge who hears evidence and makes decisions in an entirely “open-to-the-public” courtroom, you have a private Arbitrator who hears evidence and makes decisions in a 100% private and confidential setting, that is ultimately controlled by the parties.
- Furthermore, while Judges and litigants are limited by the formal legal traditions and precedents that control both the courtroom procedure and the decision-making abilities of the court, Arbitrators are free to fully customize both the procedural elements and the decision-making abilities of the Arbitrator, in order to suit whatever criteria the parties desire and have agreed to in advance, (pursuant to the terms and conditions of their formal arbitration agreement).
- All of this means that arbitration can be an extremely efficient, highly flexible, customizable, cost-effective, and 100% private and confidential alternative dispute resolution process, when compared to the normal courtroom process.
- Parties can choose to arbitrate disputes in a wide variety of areas, such as commercial/contract disputes, workplace conflicts, online disputes, community disputes, wills and estate matters, divorce, separation, and any number of other family law matters.
- There really is no limit to the types of conflicts and disputes that can be resolved through arbitration, and arbitration can be used to resolve disputes of just about any magnitude.
- Arbitration allows parties involved in dispute to obtain a fair resolution of their conflict(s) by an impartial third party without unnecessary expense or delay.
- The Arbitration process is 100% confidential and private.
- Parties are free to decide, in advance, the process and criteria by which their disputes are resolved, subject only to some basic safeguards that are necessary to protect the public interest.
- The decisions made by an arbitrator are normally 100% final, binding, and enforceable, subject only to the limitations that the parties themselves agree to in advance.
- Provided that the arbitration process has unfolded in a fully unbiased and fair-to-all-parties manner, pursuant to the terms and conditions of the arbitration agreement made between the parties, courts can be called upon to enforce any decisions made by the arbitrator, without interfering in the outcome(s).
- As mentioned above, Arbitration is an extremely efficient, highly flexible, customizable, cost-effective, and 100% private and confidential alternative dispute resolution process, when compared to the normal courtroom process
- Parties do not need to have a lawyer to go to arbitration. Many very successful arbitrations can occur simply between the parties themselves and the arbitrator.
- However, if parties already have a lawyer, they are welcome and encouraged to have their lawyer(s) attend the arbitration with them, when and where the client feels that that is necessary or appropriate.
- Under the laws of British Columbia, only an accredited family law arbitrator can provide arbitration services for family law disputes.
- An accredited family law arbitrator is a neutral third party with significant knowledge, experience, and training in the areas of: family law, family dynamics, high-conflict disputes, screening for domestic violence, and family arbitration.