In an effort to create an open and informative dialogue about mediation for participants, Christine Murray and Lisa Arora have come together to create a unique 12-part blog series that combines their insights into a comprehensive view of mediation.
Christine Murray practices exclusively in the area of family law and has extensive experience in negotiation, mediation, and litigation. She has acted as counsel for parties at countless mediations and has taught family law as an Adjunct Professor at the Peter Allard School of Law (University of British Columbia).
Lisa Arora is an internationally recognized expert in the field of graphic facilitation and a comprehensive family mediator who uses visuals to enhance communication and foster productive, mutually beneficial agreements during mediation.
The intention of this series is to provide answers to questions that people considering family mediation often ask themselves while evaluating the legal, emotional, and practical aspects of working with a mediator versus other options available to families facing conflict, separation, or divorce.
How to Know if Family Mediation is Right for You
You’re having a family law conflict, separating and/or divorcing and you need help to resolve one or more of the many issues you face. You might be asking:
“Is mediation right for me? Is it right for us?”
When it comes to handling family conflict, professional mediation is generally a positive process that benefits all parties involved in the discussion, and opens the pathway to making mutual decisions that help parties move forward in a new, positive and sustainable way.
Before committing to the process of mediation, you will want to consider how appropriate mediation is for yourself, for the other person, for your family and for the particular situation you’re facing together. You can also expect that your lawyer and mediator will have screening processes to help determine whether mediation is the right step for your case.
Mediation is meant to be:
As you begin to evaluate whether to work with a mediator to address your family issues, here are some questions and ideas to consider.
Do you know the full range of options available to you?
- Mediation is only one of many choices you have for solving your family matter. Before deciding, consider all of the options you have. For instance, could you take the kitchen table approach and work things out yourself without a third party? You could also consider collaborative law, arbitration, court proceedings, or other alternatives.
- Remember, you don’t have to choose just one option. You may be involved in a hybrid of multiple processes, or use mediation as one step in a larger sequence (for example it is common for parties who in a court process to attend a mediation to see if they can resolve their dispute prior to taking further court proceeding).
Is there something urgent happening that can’t wait for mediation?
- Is your spouse threatening to take your children out of the country? Is one party transferring assets or disposing of them behind the other party’s back
- Depending on your particular circumstances, safeguards or legal actions may need to take place before mediation can become an option at a future point.
Are there any limitation periods that apply to your situation?
- The Family Law Act (FLA) dictates certain time periods to bring certain claims. You don’t want to miss these during the process of trying to begin mediation.
- For example, in common law relationships there are time limits to bring claims for spousal support and property division. Be sure to talk with a lawyer to find out what time limitations apply to your situation.
- You may be able to address these limitation periods (for example filing a claim) and then mediate, or specifically confirm mediation will abridge the timeline for any limitation period.
- Be aware of the specifics of your situation. If you mediate first and then try to file a claim, you might be too late.
Is family violence a factor in your divorce or separation?
- When safety is a concern, mediation may not be an appropriate option unless safety measures can be implemented within the mediation process.
- Safety screening is mandatory in BC for lawyers and mediators, so no matter your particular case, expect this to happen as part of determining whether mediation is right for you.
- In some circumstances there may be court orders restricting contact or communication and these will need to be addressed prior to the mediation to ensure that all parties are protected (i.e. one party is not mediating in breach of a no-contact condition);
Are both parties capable of making sound decisions and advocating for themselves?
- Do both people have the mental capacity to make informed and responsible decisions and self-advocate? For instance, is there a language barrier that reduces someone’s ability to fully understand, participate in or benefit from mediation?
- If one party is unable to self-advocate, consider whether that might be accommodated by having a lawyer, translator, accountant, or other professional present who can assist.
Are both parties emotionally ready to have a productive mediation?
- Each person involved in the conflict will be at their own stage of the grieving process. Some people lend themselves to collaborative problem solving more than others.
- What stage are you at? What stage is the other party at? How could each of your emotional states impact the decisions you need to make?
- If you have concerns, speak with a medical professional or counselor about your own ability to work through a successful mediation, and whether or not you need additional supports in place during the process.
What are the power dynamics or imbalances in your situation?
- There are always imbalances of some kind. For example, you and your spouse may have different knowledge levels about family finances or a different degree of control over valued resources. Other imbalances might be that one party has the power to inflict harm to the other, or that one of you is better able to articulate your thoughts and think strategically, any of which could impact outcomes.
- Many imbalances can be dealt with by structuring the mediation process to address and account for them. An informed mediator can assist each party in obtaining all the information they need to make sound decisions. This will include organizing separate sessions to get a clear view of where each person is coming from, enforcing mutually beneficial ground rules (such as respectful communication), enlisting the help of co-mediators, and more.
What’s your motivation to mediate?
- Be honest with yourself. Are you seeking to use mediation to gain an advantage over the other person? If so, check yourself because if you intend to exploit someone by using a power imbalance (for example not disclosing assets or properly valuing them), you are not likely to wind up with a sustainable, durable agreement.
- It’s important to note that agreements can be challenged and overturned under the provisions of the Family Law Act in certain situations including, lack of disclosure, distress, and significant unfairness.
- If you suspect the other person is using the process in bad faith, or if you feel vulnerable to being taken advantage of, be sure to raise your concerns during pre-mediation.
Only you can confirm whether mediation is a process that you are willing to engage in. These questions are meant to help guide you in your decision. We can tell you that about 2/3 of mediations result in agreement, and even if there are some initial barriers, there are ways you and your mediation team can design the process to make your efforts as successful as possible.
To organize your thoughts as you begin to consider whether mediation is the right move for you, check out this downloadable practical tool that will help you make your decision. As we discuss in our next blog, mediation is a process that all parties involved must agree to participate in (with certain exceptions such as a Notice to Mediate or court order). We will discuss in the next blog of this series ways to invite the other party to participate in a mediation to help you solve your family issues efficiently, effectively, and with the best possible outcome in mind for everyone involved.
Please note that this series is written in the context of providing information about family mediation and is not intended as legal advice. We recommend you seek legal counsel before making any major decisions about your personal legal circumstances, separation or divorce. Feel free to contact us with any questions about this blog or mediation.