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Expert Speaks

What Exactly is Mediation?

Darpan News Desk, 18 Sep, 2019
  • What Exactly is Mediation?

And why it may be your best option when going through a separation or divorce

People have a vague familiarity with the Court process but are often unaware of the alternative ways to resolve legal disputes.  One of these alternatives is Mediation. 

The mediation process allows you and your partner to sit with a mediator, who is often a lawyer, with specialized training to help you try to resolve your legal issues without going to Court. You can usually meet with a mediator before you start the process to discuss whether mediation is right for you.
A mediator can’t make decisions for you, force you or your partner to agree, or take sides in the dispute.  They are trained to help you and your partner talk through the issues, and help you reach an agreement both parties can live with, often through comprehensive negotiation.

People usually prefer their mediator to be a trained lawyer, so one party cannot posture that they know the law better than the other party.  Though a mediator cannot give you legal advice, they can give legal information.  Therefore, the rogue party will be quickly and efficiently contained from overpowering the other. Once you and your partner reach a resolution, the mediator will recommend their notes become part of a written separation agreement to make sure that both parties have a legally enforceable contract. 

Since your mediator is not representing you as your lawyer, they cannot give you independent legal advice. Often people who try mediation will have lawyers who they turn to, to ask any questions they may have.  Some have their lawyers attend mediation, though this is not necessary. 

Why is mediation a better option?

1 It is a completely voluntary process. Both parties have to want to work together to resolve their problems.  One party can’t force the other to “accept” their perspective and has to actually negotiate.

2 A good mediator can help parties reach an agreement, even in cases of violence, as the mediator will have safeguards in place to ensure the process is safe, and imbalance of powers is accounted for and hopefully ameliorated. The mediation process is also often faster, without having to account for delays due to limited availability of the courts.

3 It is a private process – you or your partner will not need to deal with being vulnerable or exposed in a room full of strangers – a stressful factor for many people going through the court process.  The agreement to mediate can also include terms about information not being reported to third parties, including the Canada Revenue Agency, children’s teacher’s, new partners, employers and so forth.   The parties are free to agree to additional terms as they see fit to ensure the process can address their specific concerns.

4 In court, a complete stranger will tell you when you can see your children, how you will spend your money, where you will have to live and so forth.  It is naturally difficult having a third party like a Judge or a lawyer telling you what to do with your family, finances, or time.  You may walk out of court feeling the Judge has not heard your side of the story or has given a solution that doesn’t work for your family.  Mediation helps you reach an agreement you helped create, a solution that works for your real-world needs.

5 Costs – litigation is an expensive process.  The reality is that a court appearance can cost between $2,500-$5,000/day and a day of trial between $10,000-$15,000.  The more issues that are outstanding, the longer a trial can become, with experts, witnesses, cost awards and so forth.  With mediation, since both parties pay for the mediator, both parties are invested in resolving the issues quickly.

David Halkett and Aman Kahlon are experienced Family Lawyers, and Aman is a certified mediator.

If you have questions about your family law matter or potential family law mediation, contact McQuarrie at 778.765.1176.

McQuarrie is a multi-practice, Surrey- based law firm that serves the needs of businesses, individuals and institutions in Vancouver, the Lower Mainland and throughout B.C. 

www.McQuarrie.com

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