People often assume that family disputes must be settled in court by a judge. The reality is that most family disputes are settled before they reach the courtroom. In British Columbia mediation has been an alternative to the traditional court process of dispute resolution for many kinds of disputes, including family disputes, for over 20 years.
Mediation is a process where a neutral third party with no decision making power - the mediator - helps people to negotiate a settlement to their dispute. One of the most important differences between mediation and the court process (which is called litigation) is that mediation allows people to reach agreements that meet everyone's interests. The court process, on the other hand, focuses on opposing legal rights and obligations of the parties. In litigation, one person wins and the other person loses. For more information about the mediation process and the differences between litigation and mediation click here.
Mediation can be used for many kinds of family disputes but is most often used when couples separate or divorce. In these situations there are sometimes disagreements about the value of the family home and how other assets are to be divided. If children are involved there can be disputes about where and with whom the children will live, how often and when the children will spend time with the non-custodial parent and how the parents will share the cost of raising the children.
Family law is governed by both federal law (the Divorce Act) and provincial law (the Family Relations Act) and family matters are heard in both the B.C. Supreme Court and the B.C. Provincial Court. For a comparison of the courts' responsibilities, click here.
Something that often makes family disputes different from other kinds of disputes is how emotional people may be, especially when disputes about child custody and access arise. Violence and abuse can also be factors. The violence or abuse may have occurred in the past or may be happening at the time of the separation or divorce. Whether there is a history or pattern of violence or abuse in a family is a factor that can influence how a family mediation will proceed. Click here for more information about violence in family relationships.
Information about mediation does not always distinguish between practice in family disputes and practice in other kinds of disputes. While mediation of family disputes has more in common with mediation of other kinds of disputes than it does differences - for example, the role of the mediator and the steps in the mediation process are the same - it is important to understand the differences. These are discussed below in the following questions.
Questions & Answers
Why would I choose mediation to resolve a family dispute?
Mediation is particularly well suited to family disputes because the process helps people negotiate settlements on the basis of their needs and interests so that everyone can win in the end. On the other hand, when cases go to court a judge makes a decision that everyone must live with, even when one person wins the case and the other loses.
In family disputes, judges must make their decisions based on the best interests of the child. The "best interests" test is found in section 24 of the Family Relations Act. It can be difficult for parents to sort out their own needs from those of their children. Mediation can help with that process. The mediator encourages people to think about everyone's interests and needs, not just their rights. The court process, on the other hand, focuses on a person's legal rights. The result can be that parents confuse their rights with their child's best interests --- the child gets put in the middle of the dispute.
Mediation works to settle family disputes. This dispute resolution process is used in other provinces in Canada and other countries, including the United States and Australia. Research shows that in some programs up to 78% of disputes are settled through mediation.
When children are involved, parents often continue to have a relationship. Mediation can help to develop better channels of communication and to build new, appropriate relationships after divorce or separation.
How do I find a Family Mediator?
The options you have in locating a mediator will depend on whether your case is filed in the BC Supreme Court or the Provincial Court. Click here for some information about the role of the two courts in family law. The Ministry of Justice provides a variety of services to support separating families, including mediation by Family Justice Counsellors. These services are available mainly to people of modest means with custody, access, guardianship or child support disputes in the Provincial Court. For more information about the services Family Justice Counsellors provide click here.
If a Family Justice Counsellor cannot help you, you may choose a mediator from the private sector. Family mediators come from many fields, including law, social work, and education. Some good places to start looking for a family mediator are the Mediate BC Society, Family Mediation Canada, the Law Society of British Columbia, and other mediator/mediation organizations listed in the yellow pages of the telephone book.
Since 1998, the Mediate BC Society has listed mediators who meet its standards to practice civil, non-family, mediation. As of June 2002 it also lists mediators who meet the society's standards to practice family mediation. Because of the differences between family disputes and other kinds of disputes, the society believes it is important to have two separate rosters. Click here for information about the Mediate BC Society and its lists of mediators.
Family Mediation Canada is an organization that assesses and certifies family mediators according to its own rigorously researched and implemented guidelines and standards. FMC is a mediator organization whose list of mediators includes only family mediators.
In 1984 the Law Society of British Columbia became the first in Canada to recognize the practice of family mediation and to regulate that practice. To qualify for certification as a family mediator, members of the Law Society must take a 40 hour course and meet other requirements.
What should I look for when choosing a Family Mediator?
Family disputes can have different characteristics than other kinds of civil disputes, and these differences should be kept in mind when choosing mediation and a mediator. In mediation, it is important that one person not be at a disadvantage in negotiating a settlement. Mediators will look to see if there is a power imbalance between the parties that will make it difficult to negotiate a fair agreement. For example, one person may not be as good as the other in speaking up for him or herself. Power imbalances can result from the personalities of the people involved, but can also result from violence or abuse in a relationship. Assessing whether or not parties can negotiate on a balanced footing is something that family mediators should be trained and experienced in doing.
Often the mediation process can be structured to take into account a power imbalance; for example, a mediation session with two mediators - one female and one male - might be recommended. Sometimes a mediator will suggest that people do not attend mediation together; rather, the mediator meets with them separately. This is sometimes called "shuttle" mediation or "caucusing". Sometimes people ask a lawyer or some other person to come to mediation with them, in order to provide legal advice or other support.
Where there are serious concerns about violence in a relationship, to the point where the safety of one of the individuals is an issue, mediation may not be the most appropriate dispute resolution process, and the case may be best resolved by the court. Also, if a case must be resolved urgently, the court may provide a more appropriate dispute resolution process.
Family mediators often have training in managing high-conflict cases and the dynamics of family violence, as well as training and experience in mediation theory and practice. Some family mediators may specialize in assisting people to reach agreement on financial matters or property division. Other factors to consider when choosing a mediator apply in all kind of disputes, not just family disputes. Click here for information about choosing a mediator.
What happens in mediation?
The Dispute Resolution Office has information bulletins about the mediation process. These bulletins apply to civil disputes in general, not just family disputes. Click here to learn more about mediation, including what happens in mediation. Use the information in the bulletins along with this information to decide if mediation is an appropriate dispute resolution option for your family dispute and to select a mediator.
What happens if a dispute settles at mediation?
When a case settles at mediation, the mediator will help the parties write an agreement. In family disputes, it is common to file the signed agreement with the court or to use the agreement as the basis for a court order. It is recommended that people seek independent legal advice before signing the agreement.
The agreement is like any contract reached between two people. If someone breaches the agreement, parties can meet again with a mediator to attempt to resolve the dispute or use the court process to enforce the agreement.
What happens if a dispute does not settle at mediation?
Sometimes only some of the issues in dispute settle at mediation and sometimes none of the issues settle. In these cases, the parties can go to court to have a judge make a decision on the unresolved issues. Research shows that cases which go to court after a mediation session often settle more quickly and with fewer court appearance than cases that go directly to court. After participating in mediation people tend to have a clearer idea of what the dispute is about and how they would like to see the dispute settled.
Who pays for mediation?
Generally the costs of mediation are paid equally by the people who participate. Something to negotiate when choosing a mediator is the cost of the mediation. The cost of mediation can vary depending on what people want; for example, do they want a neutral place to hold the mediation, and do they want the mediator to provide it?
In some cases Family Justice Counsellors provide mediation services at no cost to the parties. For information about the dispute resolution services provided by Family Justice Counsellors, click here.
Will I still need a lawyer?
You do not need a lawyer to participate in mediation. However, talking to a lawyer about the law that applies to your dispute may help you prepare for mediation. It is also a good idea to get independent legal advice before signing an agreement reached in mediation. As a general rule mediators do not give legal advice during mediation, even if they are qualified family lawyers.
Sometimes it might be an advantage to have a lawyer with you during mediation, for example, where your dispute is very complex or very emotional. If you have a lawyer with you at mediation, you must pay for their services. You may qualify for financial assistance from the Legal Services Society of British Columbia to have a lawyer participate with you in mediation or to review an agreement reached in mediation.