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Ways to Stay Calm, Cool and Collected on Mediation Day

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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.

Ways to Stay Calm, Cool and Collected on Mediation Day

Mediation day is approaching. It’s normal to be nervous. For many people it’s an emotional day, so it’s a good idea to ready yourself with some strategies to make sure you’re as prepared as possible to stay calm, cool and collected throughout the process. The more constructive your contributions to the discussion are, the greater likelihood you have of arriving at resolution.

Here are some tips for preparing to show up as your best self on mediation day:

Make Self-Care a High Priority

If you’re nervous leading up to mediation day, acknowledge your feelings and focus on practicing good self-care, especially in the 48 hours leading up to your mediation date. Eat properly, try to get a good night’s sleep, and make time for yourself the day before. For example, get some exercise in or do something you enjoy.

Be Well-Prepared Several Days Before

Eliminate other factors that could elevate your stress unnecessarily on mediation day. Ready any paperwork/info you need to bring to mediation and get organized several days in advance so you’re not running around last minute. Make sure you have childcare arranged beforehand and know the start and end times of the mediation, so you’re not worried about managing that commitment during the session.

Get in the Mediation Mindset

Remember that mediation is a collaborative discussion, which means when the other party speaks, your job is to respond with empathy and questions, not with an argument. The aim is to better understand where the other party is coming from; rest assured that the mediator will also give you the same opportunity to be understood by the other party.

Unlike an adversarial court process where there is a transcript and people are trying to convince the court who is right or wrong, mediation is a process where you both attempt to understand one another’s perspectives. You do not have to agree with what the other party says, but you do need to listen and try and understand what’s important to them in a solution and why.

Create Comfort

Bring anything you might need for comfort. Much like an athlete might wear a certain game jersey, bring the thing that gives you comfort (your lucky shoes, a picture of your dog … whatever it is). Just having that thing present may help you. If you smoke, bring your cigarettes.

When you arrive, the mediator should introduce you to anyone in the room you have not met (for example, perhaps you haven’t met the other party’s lawyer). If this gets missed, take the lead and introduce yourself to help set a comfortable collaborative tone.

If you have special requests to assist with your comfort (perhaps you don’t want to sit directly beside the other party, or you want to be escorted to and from the mediation room) let the mediator know your requests ahead of time. Remember, it’s the mediator’s job to keep the process safe and productive, so if you feel uncomfortable at any point, caucus with the mediator and let them know what you need.

Stay Attuned to Your Physical and Emotional State

Pay attention to physical signs (tightness in your stomach, shallow breathing, tense muscles, the urge to raise your voice, etc.) that indicate you’re becoming dysregulated. As soon as you notice you’ve been triggered, use a calming strategy to prevent yourself from escalating further. If you’re able to recognize in the early stages that you’re getting wound up, you’re better able to do something about it. Your goal is to avoid saying something that will worsen the conflict and that you can’t take back.

Here are some calming strategies:

  • Bring a notepad with you. If something triggers you, write it down rather than interrupting and verbalizing it. Once it’s on paper, think about how you can respond constructively vs. reacting emotionally before you address it. Consider whether it’s worth responding to at all. It can be powerful to not respond to bad behavior of the other party.
  • Ask for breaks when needed. Go outside, walk around, get some fresh air and take some deep breaths.
  • Request a caucus. Have a private conversation with your counsel and/or the mediator. Ask for suggestions on how to shift your mindset/the conversation, or to be more effective in communicating your point.

Come Down Gently

Plan something relaxing and low key for after your mediation. Try to avoid going from your session straight back to work, or having to rush off to another demanding appointment.

If you anticipate that mediation is going to be difficult for you emotionally, consider pre-booking an appointment with your counselor, or a debrief with your lawyer after your session. Just knowing you have a plan for afterwards can bring comfort, too.

Summary

No one’s perfect, but if you do the above things, you’ll give yourself the best possible advantage to stay calm cool and collected. This will avoid damaging relationships further and will increase your productivity in finding a resolution. And for those moments when you lose your focus, remember, the mediator is there to help you.

Important: Please note that this blog 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.

How is Multi-Tasking Done in a Visual Mediation?

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Let’s appreciate that mediators know a lot about multi-tasking. In role of mediator, you are simultaneously listening, identifying what type of a comment has been made (position, interest, possibility etc), choosing a response (from a wide range of possible communication interventions), formulating a next question, managing time, reading body language, sensing emotion, and assessing progress…phew! That’s a lot going on…and then throw note taking into the mix. It’s potential to overwhelm us might be part of why so many mediators keep their notes private during mediation.

One of the most important parts of becoming a Visual Mediator (a mediator who maps the notes publicly so parties can see and work with their information) is learning how to simultaneously listen to a conversation and synthesize the information while also writing and drawing on the map. Sure, it’s a talent that needs to be honed and practiced, but once you get it down, it’s an invaluable combination of skills that improves communication and helps parties come to a clearer understanding of their situation so they have a better shot at arriving at a resolution.

Here’s a few things to know about how the “juggling act” of visual mediation happens.

What you need to first understand is that you’re not a stenographer; it’s not your job to track and record every detail of the meeting. The idea is to go for the nuggets and get down concise, relevant points that provide a condensed overview of the discussion. Your job is to summarize and integrate the most beneficial parts of any exchange and present it back in a way that facilitates greater understanding, assists communication, and helps organize the information being generated. This is precisely the opportunity mediators miss when they take notes that only they can see during the mediation.

A visual mediator takes notes in a way that is public to the parties, which means the parties are watching you do this tremendous juggling act! A big part of becoming an effective Visual Mediator is developing your ability to make instantaneous decisions about what information to capture (and what not to capture) and knowing why you’re making those choices. While you are selecting information to display, the visual representation should be something that all parties agree is an accurate reflection of the conversation that is happening in the room.

Here are some questions to ask yourself to help choose what to capture from the conversation:

  • What types/layers of information am I hearing at this stage of the mediation?
  • What would be the purpose of writing down this particular comment?
  • Is this information past/present or future focused?
  • Would this bit of information help create understanding, support the development of an agreement?
  • Does this comment support the overall mediation goals?
  • Will I work any further with this information I’m considering to include on the map?

As was mentioned before, you want to capture the nuggets of the conversation, not everything that was said. The idea is to take down enough so that you don’t lose the meaning while making sure that what you capture is detailed enough that someone who wasn’t in the room could understand what was discussed. So, you want to be succinct, but not so much so that you lose context.

Combining listening and drawing skills to make meaning of what’s being said in a room is a juggling act where you have to balance between paying attention to the conversation (across 3 moments of time), filtering out the most important parts, and synthesizing the information to then writing it in a place where parties can see and use the information. While it might seem like a big leap to leave your private notepad behind and map things on a whiteboard, flip chart or giant piece of paper, it’s important to remember that there’s no “right” set of content to capture. With practice, you’ll develop your ability to make in-the-moment decisions that enable you to show the information that is most useful and to facilitate greater understanding by giving the parties an organized way to retain and process their information.

What else have you learned about multi-tasking in mediation that assists you in note-taking?

If you haven’t yet used visual techniques in your mediation but think it might be something you want to incorporate into your practice, you can download a free copy of my Visual Mediation Agenda Template and Step-by-Step Mediator’s Guide here and give it a try in your next session.

Preparing for Your Pre-Mediation Meeting

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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.

Preparing for Your Pre-Mediation Meeting

After your pre-mediation is scheduled, you might find yourself wondering how to prepare.

There are a few different areas that you can turn your mind to preparing for (legal, financial, and your mindset). Below are some tips (grouped into categories) to help you show up prepared for your pre-mediation meeting so you get the most from the session as well as ensuring that you are setting the framework for a successful mediation:

General:

  • Put the pre-mediation date and time in your calendar, find out details about parking and transportation and contact information (this might sound obvious but you likely have a lot on your mind);
  • Many mediators have an intake form they will ask you to complete in preparation for pre-mediation. Fill it out ahead of time so that the mediator can use the full session to learn about the complexities of your situation, and not spend meeting time gathering basic information.
  • Think about what’s important for the mediator to know. There may not be time or need to hear every single detail of your story, so what’s key? (Note: the mediator is a neutral person in the mediation so you do not need to convince the mediator that you are “right”.)
  • Compile a list of any questions you have and bring it with you.

Legal:

  • Before your pre-mediation, consult with a lawyer to educate yourself about your entitlements and responsibilities;
  • Review our blog post How to Get the Most Out of Independent Legal Advice Before & After Family Mediation, which details things to talk to a lawyer about.
  • If there are any legal proceedings already underway, send your documents to the mediator ahead of time, or bring them with you to the pre-mediation. Make the mediator aware of court orders or agreements that would impact the mediation process (i.e. timelines, contact orders, protection orders etc.).

Mindset:

  • Focus or re-focus your mindset on the purpose of the mediation process. If you have been in court proceedings or conflict, you want to shift gears/discourses from adversarial to constructive. Know what your goals are for mediation before your session, and get clear on what’s important to you in a resolution and why those things matter to you.
  • Think about the best alternative to a negotiated agreement (BATNA), the most likely alternative to a negotiated agreement (MLATNA), and the worst alternative to a negotiated agreement (WATNA) for BOTH sides. We’ve developed this template to help guide you.

Preparing yourself for a pre-mediation meeting and the mediation that will follow may seem onerous, but try to take it one step at a time. Get a good night’s sleep, be honest, and relax. It’s not an exam. These are just things to think about as you get yourself ready for the process. Please see our next post about ways to prepare for participating constructively in mediation

about preparing for your pre-mediation session, or if you want information on using visual mediation during the process to improve communication and clarity, contact us at http://lisaarora.com/contact/

Important: Please note that this blog 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.

Do I Need to Bring a Lawyer to Mediation?

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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.

Do I Need to Bring a Lawyer to Mediation?

As you start to work through your divorce or separation in mediation, you might examine your option to also work with a lawyer during the process.

First of all, is it necessary or acceptable to hire a lawyer when you’re already working with a mediator (and is it a good idea)? If so, can your lawyer participate directly in your mediation sessions? What if you hire a lawyer, but prefer to attend mediation sessions without them present?

The short answer is … IT’S UP TO YOU. Certainly lawyers may be present with parties in a mediation, however, it’s not a requirement that you have one there. You and the other party both get to decide for yourselves whether to work with a lawyer, and if you do, you will be able to decide how involved their role will be.

Note: Sometimes other support people such as family members or other professionals can also be present during a mediation. These people have a limited role in the sessions, and all parties must consent to their participation.

Basically, there are three ways parties conduct mediation with lawyer involvement:

  1. Sometimes both parties bring lawyers.
  2. Other times, only one party brings a lawyer.
  3. And many times, both parties mediate without lawyers present (but seek legal advice – see below).

In instances where only one party has legal representation, a mediator will consider whether this factor creates a power imbalance and will design the mediation process with that factor in mind.

At minimum, whether you bring a lawyer to mediation or not, it is always recommended that both parties seek independent legal advice to educate themselves about their rights and responsibilities. This should be done both before starting mediation, and again afterwards, prior to signing any agreement.

With a spectrum of possible degrees of lawyer involvement, how do you decide what’s right for you?

Every situation is different, and there are lots of factors to consider. You’ll have to consider your own particular circumstances and several factors. Rather than basing your choice on any one factor, consider them all together. In your circumstance, which factor(s) carry the most weight?

  • Finances – Can you afford to retain a lawyer for the mediation as well as pay your share for a mediator? Hourly fees for mediators and lawyers can vary significantly. Typically, fees for your lawyer are your responsibility, and mediator costs are split equally between parties. How can you best allocate your financial resources in the bigger picture of your divorce process? Are there arrangements that need to be made, such as an interim distribution of property, that would allow you to afford legal counsel
  • Complexity of issues to resolve – How complex is your situation? How well do you know your responsibilities and entitlements? What are the issues? Are there some matters such as parenting planning that you feel comfortable handling on your own? Are there others, like spousal support or excluded property that you would be more comfortable deciding with a lawyer present? How confident are you in your ability to advocate for yourself?
  • Collaboration – How willing of a participant is the other party? How motivated are they to come to an agreement through mediation? What is the other person’s conflict style? How will you feel if he/she brings a lawyer and you do not?

If you make the decision to hire a lawyer, ask yourself these questions about your representation:

  • How collaborative is your lawyer?
  • Is your attorney more settlement-focused, or do they promote going to court/litigation?
  • What is your attorney’s view of mediation?
  • How dedicated is your lawyer to you getting a good result outside of court?
  • Does your lawyer approach mediation as only a stopover or discovery opportunity on the way to court?

One way to think through your decision is to ask your lawyer about the benefits of settling in mediation. If they respond with something like, “Well, avoiding a 5-day trial can save you a whole lot of money and stress. If you settle, maybe you can use the money to treat the kids with a Disneyland vacation instead,” you’ll know they’re putting your interests first.

Note: It’s important to remember that the mediator can’t advocate for you, and while they can share legal information, they cannot provide legal advice. That can only come from a licensed attorney.

If you’re still not sure about your decision, here are some observations we’ve made that might be helpful to think about.

Without a lawyer in mediation some benefits include:

  • You have one less immediate cost;
  • It’s easier to schedule mediation dates because there are fewer parties to coordinate;
  • The mediation generally takes on a less formal tone;
  • Working with fewer parties allows more direct communication and less opportunity for misunderstanding;
  • If you and your spouse can communicate directly and work things out in mediation, you have an opportunity to strengthen communication between the two of you. This can be a confidence builder because you’ll have the experience to draw on when working things out in future;
  • You might achieve more flexibility in problem solving by taking less of a legal stance on your situation;
  • You can still gain access to legal advice during the process. For example, you might consult with a lawyer between multiple mediation sessions, you and the other party might agree on matters subject to legal advice, or you may reserve certain issues to be discussed only with an attorney present.
  • You still have the power to adjourn your mediation and secure legal counsel if you decide you’re in over your head (Note: it is imperative that you do this before signing agreements);
  • If you are not successful in mediation, the process will have been conducted without prejudice, which means it can’t be used in court. At that point, you can decide on taking next steps with or without the help of a lawyer.

With a lawyer in mediation some benefits include:

  • You have someone to accompany you to mediation sessions, likely who will have experience from participating in many previous mediations;
  • There is another person who can help set a positive and productive tone in the mediation;
  • You have someone to help advocate for you;
  • Your legal counsel will be responsible for bringing and organizing all of your documents;
  • There is someone to help you keep your emotions in check during a charged situation;
  • You have an objective person who can hold the bigger picture in mind and depersonalize things during the mediation process;
  • Your counsel can help you feel safe and supported;
  • There is instant access to legal information and advice about matters you might not be aware of (for example, tax implications);
  • If you work with an experienced lawyer, they will have many previous situations they can draw from to help can suggest creative solutions;
  • You have someone who can provide a point of view on the mediator’s performance;
  • Your legal counsel will help you evaluate offers and proposals that are put forward for you to consider;
  • There is someone who can help ensure that the agreements you come to are properly recorded;
  • It is possible to limit your attorney’s role to participate in only one portion of the mediation.
  • You have someone who’s staying up to speed on your situation and can, if you fail to resolve all your issues in mediation, give you advice on what steps to take next;
  • You can potentially be more efficient in coming to a resolution as you do not have to break to get legal advice and re-schedule the mediation for a separate session.

Take care to realize that while there can be lots of value in bringing a lawyer to mediation, they could have an inherent conflict of interest when it comes to making a settlement. Unfortunately, some lawyers may see a successful mediation as lost revenue in trial. Others see successful mediation as an opportunity to help your family reach a positive and cost effective resolution while making their time available to help other clients.

It may feel daunting to make the decision about how much to involve a lawyer in your mediation, but know that if you later feel you want to change your approach, you can. There is the possibility to re-negotiate the parties to your mediation partway through the process. Because mediation is voluntary—as long as you have not signed off on any agreements—you can stop the process at anytime to re-group and figure out what next steps you want to take.

If you have more questions about how to decide whether you should secure legal counsel for your mediation, or if you want information on visual mediation, contact us at http://lisaarora.com/contact/

Important: Please note that this blog 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.

How to Effectively Invite Someone to Participate in Mediation

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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 Effectively Invite Someone to Participate in Mediation

The Situation at Hand: We’re separating/divorcing and I want to use mediation. How do I ask the other person if they will participate?

Before you ask your soon-to-be ex to start mediation with you, you want to put yourself in their mindset as you think about how to approach your request . What concerns and questions will they have? What questions would you have if you were being asked to work with a mediator to process your break up?

Questions to ask as you plan your approach:

Who’s the best person to start the conversation?

  • Should the message come from you? Your lawyer? Their lawyer? Or perhaps there’s another neutral person you both trust and respect who could initiate the discussion.
  • How intense is the conflict? What’s happened recently? How has communication between you been in the past couple of weeks?

When is the best time?

  • Choose a non-emotional time (i.e., avoid major holidays, birthdays, or your anniversary.)
  • Consider work schedules and other obligations that might detract from the task at hand.
  • Think about factors that might affect the outcome: current fights, a period of depression, a recent family death, etc.

What’s the best medium?

  • Do you want to ask using a real time method or not?
  • Should you create a record of the conversation?
  • How does the person you are communicating with usually like to receive messages?
  • What’s been your most effective communication method so far?

What info should you lead with?

  • You could explain the mutual benefits (cost, interpersonal).
  • Start with your reasoning for choosing mediation and your intention for the process.
  • Provide resources and invite them to gather information on their own before making a decision (talk with friends who’ve also used a mediator, schedule a consultation with a professional).
  • Consider the pros and cons of suggesting a specific mediator vs. just introducing the general process.

How should you conduct the discussion?

  • Be polite and respectful for the best results.
  • Keep things brief and future focused.
  • Consult Bill Eddy’s BIFF handout for lots of good communication tips before you initiate the conversation.

Sample Email:

What happens if, after you’ve put forward your best approach, the other person still refuses to work with a mediator to solve your issues?

  • First, ask for them to give other suggestions on how they think you can best work through your problems.
  • Stay open-minded to their response. If they are genuinely not willing to try mediation, you might not want to attempt to force them into it.
  • If there is a court proceeding, you could look into the option of serving a notice to mediate or pursuing a court order to mediate if you feel strongly that it’s the best process for your situation.
  • Remember: there are other options to solve family disputes, and you may not want to add a fight about mediation to the problems you’re already having.

If you have questions about how you can use mediation to solve family issues efficiently, effectively and with the best possible outcome for everyone involved, feel free to contact us at http://lisaarora.com/contact/

Important: Please note that this blog 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.

How to Know if Family Mediation is Right for You

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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:

  • Future-focused
  • Efficient
  • Cost-effective
  • Consensual
  • Confidential

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.