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Mediation and Collaborative Family Law

This article is intended to provide information only, not legal advice. If you have a legal problem or need legal advice, you should speak to a lawyer.

How can you avoid going to court?
When a married couple or a couple who are living together decide to divorce or separate, they’re often faced with many issues. Who should the children live with? What about access? How much support or maintenance should the husband or wife pay? Who gets to stay in the family home? How will the assets be divided? Many couples don’t want to fight in court to resolve these questions. They want to work together cooperatively to come to an agreement that suits each of their needs as best as possible, while still maintaining their legal rights. They also want to resolve these issues without paying huge legal bills. Two ways to resolve family law disputes without going to court are:

  • Mediation
  • Collaborative family law (or collaborative separation and divorce)

What is mediation?
In mediation, you and your spouse or partner work together to identify and resolve the problems in your family due to the separation or divorce. Usually the mediator is a lawyer, psychologist or other trained helping professional. If you see a lawyer-mediator (called a Family Law Mediator), they cannot offer individual legal advice, but they can give you general information about family law. The mediator listens to what’s important to both of you, asks for your opinions on the issues, and helps the two of you come to your own solutions about the future. If you have children, the mediator will help you make decisions that are best for them.

How do you prepare for a mediation?
Before you hire a mediator, you and your spouse may wish to meet separately with your own lawyers, who will tell you what to expect at the mediation and what information you need to take with you to the first session. Your lawyers will also help you gather that information.

How much does mediation cost?
Mediation is usually less expensive than going to court. When you first meet with a mediator, they will discuss the costs with you and your partner.

How long does mediation take?
Mediation meetings are normally two to four hours long. There could be more than one meeting, depending on how many issues need to be resolved. Sometimes the mediator may meet with one of you separately. The mediator may also give each of you “home work” to identify the issues and help disclose all financial and other matters.

Who prepares the agreement?
With the results of the mediation process, the Family Law Mediator (or your lawyers if your mediator is not a lawyer) will prepare an agreement. Note that while the mediator helps you and your spouse or partner to come to an agreement in principle, it’s normal practice to consult your own lawyer before signing the agreement to obtain independent legal advice.

What is “collaborative family law”?
Collaborative family law is a process where you and your spouse or partner, along with your respective lawyers, agree to “collaborate” or work together to create acceptable solutions for both of you without going to court. If you choose, you may also hire other collaborative professionals like a divorce coach or child or financial specialist, who are trained to help you agree on parenting plans and negotiate child and spousal support in a non-adversarial way. The collaborative process is centered on your needs and your children’s needs. Communications are open and full, and you and your spouse or partner are encouraged to reach your own decisions about issues that are important to you.

How long does a collaborative approach take to resolve matters?
Experience has shown that more than a single meeting is required to come to a collaborative agreement on all issues. The number of meetings will depend on how many issues need to be resolved. The two lawyers may meet to discuss information about each of you and set agendas for meetings involving you, your spouse or partner, and your respective lawyers. Occasionally an agreement is reached after only one four-way meeting involving all of you. It’s in these four-way meetings that your agreement is negotiated.

Is a mediation or collaboration agreement binding?
Your agreement is a legal contract. As a contract, the agreement can be enforced by starting an action in court. If you’re married and either of you seeks a divorce, the agreement can be shown to the judge, and if requested, the judge may approve it or make it part of the divorce order.

Can the agreement be changed?
The agreement can only be changed if you and your spouse or partner agree or a court orders a change. If circumstances change after you’ve signed the agreement, you and your spouse or partner can go back to a mediator, or negotiate a change in your agreement yourselves or with the help of collaborative family lawyers. The court can also always make a change.

When is mediation or a collaborative family law process not appropriate?
While these are very good ways of resolving family issues, they may not be appropriate if there has been family violence or child abuse, or if the other spouse won’t participate fairly during the mediation or the collaborative divorce process.

How can you find a qualified and experienced mediator?

  • For a Family Law Mediator (lawyer-mediator), phone the Lawyer Referral Service at 604.687.3221 in Vancouver or 1.800.663.1919 toll-free elsewhere in BC. A Family Law Mediator is especially useful if one of your issues is dividing up the assets and property. 
  • Call Family Mediation Canada at 1.877.362.2005 (toll-free) and ask for a list of family mediators in your area. Their website is www.fmc.ca
  • Contact the British Columbia Mediation Roster Society, which maintains a list of family mediators. Call 1.888.713.0433 or click on www.mediator-roster.bc.ca
  • A Provincial Court Family Justice Counsellor may be able to help. They typically help people of modest means with custody, access, guardianship or child support disputes in Provincial Court. Their services are free. Phone 604.660.2421 in Greater Vancouver, 250.387.6121 in Victoria or toll-free 1.800.663.7867 elsewhere in BC, and ask to speak with a Family Justice Counsellor in the Family Justice Centre nearest you. Also see the Family Justice website at www.ag.gov.bc.ca/family-justice.

How can you find a lawyer trained in collaborative family law?

  • Phone the Lawyer Referral Service at 604.687.3221 in Vancouver or 1.800.663.1919 elsewhere in BC.
  • In Vancouver, call Collaborative Divorce Vancouver at 604.878.1498 or visit their website at www.collaborativedivorcebc.org for the name of a member lawyer, as well as for names of other collaborative professionals. All members of the association have received both collaborative family law and mediation training. 
  • In Victoria, call 250.704.2600 or go to www.collaborativefamilylawgroup.com for information on the Collaborative Family Law Group of Victoria and the name of a member lawyer.
  • In Kelowna and the Okanagan area, check the Okanagan Collaborative Family Law Group at www.collaborativefamilylaw.ca.

What questions should you ask the mediator or collaborative family lawyer?
When you have the names of some mediators or collaborative lawyers, ask each of them the following questions before deciding who to use:

  • Does the person belong to any professional organizations for mediators or collaborative family lawyers?
  • What kind of training has the person received, and how long have they practiced as a mediator or collaborative family lawyer?
  • What kinds of mediation or collaborative family law issues do they handle? (Some mediators, for example, may only deal with child custody and access disputes. If you want to mediate financial and/or property issues, you’ll want a Family Law Mediator who has training and experience in that field.)
  • How much will it cost?

Reference: The Canadian Bar Association Website