Mediation is a supervised negotiation process in which both parties work with the assistance of an impartial mediator to work out an agreement. Mediation can be a successful and cost-effective method of reaching a settlement if both parties are reasonable, fair and willing to communicate.
Mediation can be difficult and even traumatic if there has been an imbalance of power in the relationship, particularly if one side has been previously subjected to bullying, hostile or threatening behaviour.
Both parties must agree to engage in mediation. Mediation will generally not work if one of the parties is reluctant or unwilling to engage in negotiation. It is also likely to be unsuccessful if either party is not willing to make some sacrifices or concessions in order to reach agreement.
Because mediation is considered to be part of the settlement process, all communications between the parties and the mediator are “without prejudice," meaning that nothing that is said or proposed can later be introduced in court by either of the parties, should an effort to reach an agreement through mediation be unsuccessful. At any stage of the mediation, each party is free to seek and obtain independent legal advice with regard to the matters under discussion.
Mediation can be a lengthy and expensive process, in particular when one of the parties refuses to compromise and therefore no agreement can be reached.
Most mediation requires a minimum of 2 to 5 sessions of an hour or more each with the mediator. If an agreement is reached, then the mediator will prepare a written agreement that sets out the agreed upon terms. Each party is best advised to obtain independent legal advice before signing the agreement. The costs of mediation are usually shared by both parties. At Lowther Family Law, we can provide independent legal advice and support to you while you are engaged in the mediation process.
Collaboration and Collaborative Law
Collaborative law has become very popular in British Columbia in recent years. In collaborative law, both parties are represented by their respective lawyers and they attempt to reach agreement. This type of process is very similar to mediation and also works well with a couple that enjoys an open communication style, reasonable positions and a non-adversarial relationship. It is less suitable where one partner is more rigid, and where the other partner feels harassed, threatened or pressured to agree.
Note: The information provided above is general information only and is provided as a public service. For detailed information and advice with respect to your specific circumstances, please contact our office for an appointment.