Mediation is a process in which a neutral professional assists spouses in making decisions that they are otherwise unable to reach, typically through an interest based discussion. The mediator searches for common interests and puts them together in an effort to best structure a future that each spouse is striving to attain following the separation. The primary focus is usually on where each spouse wishes to find themselves in the future. This is very different from a rights based process that focusses on the events that brought each spouse to the place of separation and is therefore primarily stuck in the past.
Some of the advantages of mediation are that by focusing on the future rather than the past it generally creates greater satisfaction for the participants. Further, because the participants come to their own decisions on their own terms, if made into a binding agreement, it is unlikely to be contested in future proceedings. Where mediation is done with minimal involvement by lawyers, it has the potential to be the most cost effective process to arrive at decisions where there is not initial agreement.
Unfortunately, as with all processes, there is the other side of mediation which can counter balance its advantages. The mediator must remain unbiased to maintain neutrality. If the neutrality is lost, or perceived by either spouse to be lost, the process is unlikely to result in an agreement being reached. The mediator cannot impose an agreement and has limited ability to suggest an agreement without jeopardizing neutrality. This means that the ability of the mediator to provide legal direction is restricted by the mediator’s inability to provide any legal advice to either party.
As an interest based process, mediation may not address the rights and obligations that either spouse may have so that it is often done in a void where the participants are not fully aware of their legal rights and obligations. The void can be corrected with each spouse having a lawyer present at the mediation or operating in the background of the mediation, however, the introduction of lawyers into the mediation process can substantially change the nature of the process and will of course substantially increase the cost of the process.
The agreement reached at the conclusion of the mediation is generally a non-binding agreement until the spouses receive independent legal advice. This may be where a spouse realizes what their legal rights and obligations are for the first time and reconsiders their position on the decisions reached in the mediation. The consequence of which being a return to mediation having or a change to another process to reach a resolution.
Mediation is generally a great process for
- legally sophisticated spouses who are both well aware of their legal rights and obligations
- spouses in a lower state of conflict over the decisions they have to reach
- spouses who are tired of the Litigation process or in Litigation and cannot financially rationalize having a Judge make decisions for them
- spouses who have positional lawyers they wish to retain but in a more interest based process
- spouses who can each be reasonable and retain a degree of trust for the other spouse.
Non-binding arbitration is a mediation process where the neutral professional tries to find commonality between spouses in the same manner as mediation, but if an impasse is encountered, the neutral professional is empowered by the spouses to provide a suggested decision that resolves the impasse, even at the cost of the mediator/arbitrator’s neutrality. The suggested decision will be based on the mediator/arbitrator’s view of each spouse’s legal rights and obligations, factoring in the interests of each spouse and disclosure made within the mediation portion of the process. Although the suggested decision may be delivered in the form of a written agreement, it is not a binding resolution and can only be binding upon both spouses signing the agreement with the benefit of independent legal advice. Unlike the Mediation process, the neutral professional in the non-binding arbitration process can be more directive with regard to that professional’s view of the rights and obligations each spouse may have. The safety for each spouse in this process comes from the result not being binding until full legal advice is received.
Non-binding arbitration is a simplified process that is built to a price. It is likely a good process for
- lower conflicted spouses
- spouses who do not have a good understanding of their legal rights and obligations
- spouses looking for some initial direction in making their decisions
- families with uncomplicated financial circumstances
- families lacking the resources for the more complex processes described below
As arbitration is generally considered a binding process, technically there may be no such thing as “non-binding arbitration” and some lawyers may prefer to call this process “determinative mediation” instead. To be qualified as a family arbitrator in BC takes specific training over and above mediation training. Although this process may be non-binding, a lawyer only trained in mediation may lack the skills to carry out this process, hence the the term “non-binding arbitration” to ensure the professional meets the higher standards of family arbitration.
Collaborative Process is an evolution of mediation, using the benefits of interest based dialogue to reach agreed upon decisions, but by virtue of each spouse having their own Collaborative Lawyer in the process, they receive real time legal advice through the process. A separate mediator is not used in a Collaborative Process, instead the Collaborative Lawyers are fully qualified mediators and trained in the Collaborative Process so that the interest based mediation skills are still present.
The Collaborative Process is a multi-disciplinary process using Collaborative Lawyers, Divorce Coaches (family counsellors), Child Specialists and Financial Specialists in a team approach to assist the spouses in arriving at decisions that use the best that each profession can offer. Despite what may be feared from a cost perspective of having multiple professionals involved in a matter, by having professionals be true to their expertise, the level of efficiency is greatly enhanced and the cost of the process as a whole may be substantially reduced. For example, lawyers who are not trained in the emotional or psychological needs of children and may not be particularly knowledgeable about parenting. To have them work on a parenting plan that meets the best interests of your children at higher hourly rates than professional counsellors (Divorce Coaches and Child Specialists), is likely to cost more and result in a lower quality agreement.
One of the hallmarks of Collaborative Process is that it is a team approach to settling any impasse to the spouses making decisions on their own. A Participation Agreement is signed by the spouses and the lawyers to ensure full relevant disclosure by the spouses during the process and that if the process should not result in an agreement, each spouse must retain a new lawyer. This provision allows unfettered discussion by protecting each spouse from saying anything that may later be used against them if the matter ends up going to Court. It is also designed to ensure that the Collaborative Lawyers are fully invested in the process as they will lose their clients if the process does not result in an agreement. Because Collaborative Process is quickly gaining in popularity around the world, lawyers who are not trained or qualified in the Collaborative Process are claiming themselves to be “collaborative” which can be misleading. If a lawyer is committed to the Collaborative Process they will be members of the IACP (International Association of Collaborative Professionals), the BC Collaborative Roster , and/or Collaborative Divorce Vancouver. Where “Collaborative Process” or “Collaborative Lawyer” is used in this website, we are referring to the process or lawyers as defined and qualified by IACP standards.
Collaborative Process has the following advantages
- it is a good, cost effective process for any family that does not require Litigation (Court)
- because each spouse has a Collaborative Lawyer for them throughout the process, the process adapts to the sophistication of each spouse regarding their legal rights and obligations
- because each spouse is fully represented legally, once an agreement is reached and signed by both spouses and their lawyers it is legally binding without any further steps required, unlike Mediation or Non-binding Arbitration (both of which require independent legal advice on the agreement reached before the agreement is binding)
- the multi-disciplinary team approach means that even the most complex financial situations can be untangled with fair and creative decisions made in a fully knowledgeable environment, often using input from Financial Specialists
- where there are special needs or concerns regarding children, the use of Divorce Coaches and Child Specialists ensure that your children’s best interests are always put first
- where spouses are in a high degree of conflict with one another, the use of Divorce Coaches working with the needs of each spouse can work out a means of communication between the spouses that can be functional, making for an easier process and substantially reducing the legal costs when the spouses are meeting with the Collaborative Lawyers
- it is interest based and therefore focused on your future rather than your past
- it is conducted primarily in four way meetings so that the professionals are as educated on the other spouse’ story and needs as on your own, making for less biased settlement discussions
- the decisions reached in the Collaborative Process are voluntary and yours to make
The primary disadvantage to the Collaborative Process as well as any non-Court process is that it is voluntary, meaning that the process will only be as good and functional as the individuals working within the process, i.e. the spouses and the professionals they choose. There is no guarantee of successful completion of an agreement.
Most processes apart from Litigation are forms of negotiation. Within the scope of negotiation there are two primary categories: interest based negotiation and positional negotiation. Mediation, aspects of Non-binding Arbitration and Collaborative Process are interest based negotiations because the main focus is on the future objectives for your separated family. Positional negotiation is the primary form of negotiation in Court or by many lawyers outside of Court. In positional negotiation, each spouse is a “side” represented by a lawyer and the two sides each try to obtain an advantage over the other side. The longer that this tug of war goes on, the greater the cost of the process, sometimes with a resolution coming only from exasperation instead of agreement. As can be imagined, positional negotiation can often lead to Litigation as each party starts to believe in the position that they adopt and become enmeshed in it, so that a Court determination is the only way out of the impasse. In many cases, especially where the cost of the process starts to exceed any benefit that can be derived from it, the spouses, with or without their lawyers enter into Mediation. Mediation is a preferred over litigation where the negotiations are stuck. Advantages for positional negotiation in a family separation are few if any. The nature of a separation, especially when there are children, is that the spouses’ relationship is transformed by the separation but not terminated by it. Advantages gained through positional negotiation may turn into short term success at the cost of long term detriment. Where one spouse has achieved an advantage over the other spouse through positional negotiation, there is usually long term animosity that can counter balance the immediate advantage and sour the future.
Litigation is Court process. Each party makes a “claim” against the other and if an agreement is not reached, the Court, through a Judge steps in to make the spouses’ decisions for them. In the situation of a family separation, a trial is unlikely to be less than 5 days and you can expect it to be minimally about one year down the road at a cost in excess of $100,000 per spouse. The good news is that very few matters in Court actually go to trial, perhaps only 3 %. The bad news is that the process of Litigation can increase the level of conflict between spouses which in turn decreases the opportunities for agreement, thereby delaying any settlement and increasing the level of conflict. Consequently, this is a process only for the highest conflicted situations. If you are not in a high conflict situation, you may wish to reassess the choices of professionals you and your spouse have made if you are in Court or your lawyer is suggesting Court before one of the above non-Court processes.
Court decisions are based on evidence, which by its nature is historical as it must be in existence at the time it is presented. Consequently the decisions made for you by the Court are primarily based on past behaviour and fault finding. This form of decision making draws its roots from areas of law other than family law, where claims are made on the basis of wrongs done. In family law, where spouses are separating, there is seldom any relevant legal “wrong” that has been done. The role of the law in a family separation is simply to ensure that the decisions made by the spouses are fair and equitable in our societal view as articulated in the Divorce Act (Canada) and the Family Law Act (BC).
Our main stream legal institutions are not well equipped to assist in family separations. The new Family Law Act (BC) acknowledges this by encouraging resolution outside of Court and the Court process itself has developed the Judicial Case Conference in Supreme Court and the Settlement Conference in Provincial Court as an early intervention to encourage spouses to find alternatives to trial and court process for the decisions to be made following their separation.
Litigation can also deliver vague results. We have three potential levels of appeal courts in British Columbia because Judges do not always agree what the law is on the same or similar facts. Usually it takes years before contrary running cases are resolved by the appeal courts and for the poor family who funds the resolution to the Court of Appeal or Supreme Court of Canada, they can anticipate six figure legal fees for each spouse at each level of appeal.
Despite the cost and awkwardness of Litigation in the context of family separation, there are some very real and distinct advantages of going to court that cannot be replicated in any other process. First and foremost is that this is the only non-voluntary process. Once one spouse enters into the Litigation arena, both spouses are in this process and absent the ability of the spouses to make a decision on any interim or final matter, the Court will step in and do it, at which time it is binding unless overturned on appeal. There may not be any right to appeal a family matter and even if there is, there are strict time constraints to do so and incentive on the Court of Appeal to not allow an appeal for fear others will follow. Where court works particularly well is where one or both spouses have personality disorders or issues that require strict boundaries on procedure, outcome and enforcement. In the very few cases where this is the case, Litigation may be the most viable process.
One of the newer processes available to separating families in British Columbia is Binding Arbitration, which is generally referred to as just Arbitration or Family Arbitration in this context. Arbitration is essentially a private court process. Due to the “rules of natural justice” an arbitration process in a family separation must afford each spouse with the same or similar rules of procedure as the Court process, including evidence and cross-examination. Consequently the main benefit of Arbitration over Litigation is that the spouses can choose the Arbitrator. This is no small advantage when the cost of Litigation is considered and the fact that it is unlikely that the Judge you get at trial in Court will have a background in family law. Arbitration allows the spouses to ensure that for the high cost of this process, the person making the decisions meets at least some limited qualifications for doing so as set out by the spouses. And although the rules to be followed in an Arbitration must be similar to that of the Court, there is some flexibility to make them more conducive to the particular needs of the spouses.
Like Court, at the end of the tendering of evidence and arguments, the Arbitrator makes a decision for the spouses where they are incapable of making those decisions for themselves. The decision of the Arbitrator, like the decision of a Judge, is final and binding. An Arbitrator’s decision can be reviewed by the Court only in certain circumstances, most of which are unlikely to occur.
The cost of Arbitration is similar to the cost of Court. The spouses pay for the Arbitrator which is not inexpensive whereas there is no real cost for the Judge in Court, so that makes Arbitration potentially more expensive than Court, but the ability to streamline the rules and set dates that are not bumped for other matters can make up for the additional cost of the Arbitrator. The quality of decision stemming from an Arbitration can also be as good as or better than what can be anticipated from a Judge in Court.
The downside to Arbitration vs Court is that it is a private process and consequently where rules are broken or a spouse or witness fails to appear, there are far more limitations on the punitive measures that can be taken by the Arbitrator in comparison to what a Judge could do in similar circumstances. Thus where strict boundaries to contain personality disorders or issues are required, Arbitration is not likely a good alternative to Court.
On the basis that only about 3% of Court matters are resolved by trial, it would seem misguided to take Court action when other, more efficient, less expensive and more functional decision making processes are available, unless your matter is so extreme as to be in the 3 %. Court process does not assist in complex matters or anything other than the most conflicted separations. In fact, in some complex financial matters, the Court has fewer options for resolution than do the spouses on their own, outside of Court. Positional negotiation, likewise has little to recommend it. Collaborative Process likely has the potential to reach the largest number of families just entering into the realm of separation in the most functional and cost effective manner. Mediation is an excellent process for some, but may be limited in its utility and appeal. Non-binding Arbitration may address some but not all of Mediation’s flaws but may not be the best process where there are complex financial issues.