Mediation Of Family Law Disputes In British Columbia
Resolving family law disputes is often a delicate and lengthy process, and spouses are sometimes unable to come to an agreement no matter how hard they try. Court action is the traditional way that these differences have been resolved, but the outcome of these proceedings is uncertain and the legal bills associated with them can be high. However, mediation is another solution available to couples in British Columbia involving a third party who has been trained to help resolve family law conflicts.
While a judge may impose a solution, the goal of a mediator is to help spouses air their concerns and resolve their differences through discussion. While mediators are often lawyers, they are not permitted to give legal advice. For mediation to be successful, it has to perceived as being fair. Mediators are therefore expected to remain neutral at all times. Mediation is also likely to be far less costly than litigation, and mediation services are available from Legal Aid BC for British Columbia residents who qualify.
While mediation is a way to resolve family law disputes amicably, a spouse cannot usually be compelled to attend. However, the rules are different when a family law case has been started in Supreme Court. In this situation, a spouse can be served with a Notice to Mediate compelling them to attend mediation sessions.
An experienced family law lawyer will likely understand how difficult it can be to avoid conflict when addressing the potentially thorny issues of property division, child custody and spousal support, and the lawyer may recommend mediation as a way to reach an amicable settlement. Divorce is often emotionally draining, and a neutral third party may provide valuable reassurance.
What Is The Difference Between Mediation And Litigation?
Family law covers divorces, child custody and visitation, alimony or child support, and a variety of other disputes among family members. But seeking legal assistance for these issues does not have to include going to court for resolution. More and more families are opting for mediation instead of litigation.
What is the difference between mediation and litigation? The big difference is how the resolution of a family dispute is decided. In mediation, a dispute is resolved by negotiation, which is based on the needs and interests of the parties involved. In litigation, the resolution is based on legalities and laws.
In both mediation and litigation, a third-party is involved in helping to resolve the issues; however, in mediation, the third-party is a facilitator who acts as a “go-between” to help parties negotiate a resolution. In litigation, the third-party makes the final decisions. Mediation processes are also informal and flexible while litigation is more formal and must follow rules and specific procedures. Litigation is also public, while mediation can be private.
What are the benefits of mediation over litigation? In litigation, the decision-making is often based on exertion of rights ending in a win/lose battle. Negative emotions are more common in litigation than mediation. A mediation facilitator is a neutral party that guides participants in working out solutions that are agreeable by both parties. This makes the whole process much less stressful and encourages the parties to get along.
In divorce cases, where children or asset division is involved, cases that otherwise may become antagonistic or quarrelsome, can often be transposed into quiet, friendly negotiations when using family law mediation. Mediation processes can be completed quickly or take months, depending on the situation, but the timeline is flexible. A mediation process may include a team of different professionals to address different areas of concern, such as financial, psychological and legal.
While mediation does not require an attorney, before signing any mediation agreements, you will want to have an attorney review them, so it often works out best to use a family law attorney from the beginning who provides mediation services. They can provide legal advice and answer questions about the law. They also have the resources to recommend or bring in other professional facilitators as needed.
Source: British Columbia Ministry of Justice, “Family Mediation,” accessed April 22, 2015
What If You Want Mediation And Your Spouse Doesn’t?
What do you do when you really want mediation and your family member — or soon to be ex-spouse — doesn’t?
If your case has already been started in Supreme Court, and you can’t convince your opposing family member of the benefits — such as solving your issues without appearing in court — you can “require” that he or she attends mediation services. You can have him or her served a Notice to Mediate. Time is important, though. The notice must be served between the 90-day period after the Response is filed and 90 days prior to the date set for trial.
Your opposition is now obligated to attend mediation, except in the following situations:
- A family law protection order or a peace bond exists by one of you against the other
- A mediator does not believe that mediation would be an appropriate or productive tool for the two of you and advises the court of such
- You’ve had a previous mediation regarding the issues in dispute
- The court exempts one party from having to participate because of impracticality or unfairness
- You both sign an agreement, confirmed by the mediator, stating that one party does not have to participate in mediation
There is still no guarantee that your opposition will comply; however, if they do not, the court can order them to pay your court or other costs for applying for the mediation.
Mediation, however, is a good tool for most people to use in resolving family disputes. More and more couples and family members are turning to this type of resolution, as it is more friendly, less destructive and less expensive than court. The next step is to find a good mediator.
Attorneys, who provide this service, usually have good, qualified mediators in their firm, and resources to other professionals, such as financial counselors, mental counselors and any other qualified individuals deemed necessary.
What Should You Expect When You Choose Family Mediation?
What is family mediation? When a family is experiencing a dispute, a mediator, who is a non-biased party, helps the parties come up with a resolution. The mediator does not take sides, but listens to the concerns of each party and helps them come to a resolution or settlement — without going to court.
What happens in a mediation session?
In a mediation session, each party is able to express his or her concerns and ideas. A mediator runs the session, ensuring that everyone has a right to equal time and freedom of his or her opinion. Parties involved in the session can meet with a mediator together or in separate rooms. The goal is to come up with a solution that all parties can agree on.
How long do the sessions take?
Session times may vary. They may last up to three hours.
What happens after a mediation session?
If a settlement or agreement is decided on, it may be written up and filed with the courts by the attorney. If an agreement was not forthcoming, another session may be scheduled.
What types of family issues are candidates for mediation?
Divorce and/or separation, asset division, custody and parenting plans, child support or alimony — these are all family issues that may benefit from family mediation.
What are the benefits of family mediation?
Mediation is much friendlier than fighting out family issues in court. In court, a judge makes the final decision on the case. In mediation, the parties involved have an opportunity to have their issues and concerns not only heard, but considered. Through the mediator, the parties come up with a final solution, which each must agree on. There is less negativity and stress — and usually a kinder outcome.
How do I know what type of mediator I need?
A mediation attorney can usually provide advice on what professional resources are needed depending on the type of dispute. For instance, in dividing a family-owned business, a financial appraiser may be needed to determine the worth of the business.
Source: Legal Aid Ontario, “Family mediation and settlement conferences,” accessed May 14, 2015
Mediator Role In Divorce Mediation
If you and your soon-to-be ex have decided to use mediation as your source for divorce resolution, having the right mediator may make all the difference. A mediator has a special role, and it is not an easy one. They must try to make the process as painless and fair as possible.
According to a one successful mediator, when facilitating divorce issues, the most important role they perform is listening. That may sound simple, but there are some rules they need to follow to be successful. They must:
1. Listen closely, ensuring that each party gets to speak freely without being interrupted.
2. Listen with an open mind without judging.
3. Ask questions to ensure understanding of what was actually meant, and try to understand each person and their goals.
4. Remain stable when pain or disappointment is evident in either party.
5. Listen without trying to fix or minimize the issues.
A good mediator does not have to personally agree with, or even like, a person, but should respect his or her perspective of reality.
Fostering communication and understanding between the two parties is the best way to ensure successful mediation. Spouses are more apt to be agreeable, and relationships post-divorce are usually more amenable as well, which is a big plus when children are involved.
Most people chose divorce mediation because it is less expensive, quicker and usually a friendlier way of resolving issues. But what makes it work is a good mediator with good listening skills, who understands that his or her role is not as “decision-maker,” but to guide and oversee the mediation process.
If you plan to use mediation to resolve your divorce, take time to select the proper family mediation group. You may need additional professionals involved in your divorce process, and you need a mediator with a team of resources available.
Source: Huffington Post, “Secrets of a Successful Divorce Mediation,” Alison Patton, June 21, 2015
What Happens When Mediation Fails?
Sometimes, couples start out with mediation and realize that they are not going to be able to reach an agreement on some key issues. In these situations, the case would then need to be moved to the family courts. When this happens, it’s normal and expected to have questions about how what you may have said or done during the mediation process may influence the court proceedings.
As a general rule, the mediation discussions are considered confidential, even if the mediation was not successful. Any proposals or concessions you made trying to reach an agreement in mediation are not admissible in court. It’s important to understand that this goes both ways. You also will not be able to argue that your spouse agreed to something in mediation, so that should still apply now that the case has been moved to the courts.
Mediators also cannot act as witnesses for either side during the court proceedings. This is important because it ensures that both parties are comfortable talking openly and freely with the mediator when trying to come to an agreement. However, it’s also important to note that mediators cannot and will not provide legal advice. They are considered a neutral third party and also are not responsible for protecting either parties’ best interests.
Whether you are considering using the mediation process or have tried and failed to reach an agreement through mediation, at West Coast ADR Law Group, we can help. Our lawyers work with those going through mediation to ensure they understand any possible consequences of a proposed settlement and help those who wish to move on to the family courts understand what to expect.
How Is Child Support Calculated?
How child support is calculated often feels like a mystery for parties on either side of the child support order. Understanding how child support guidelines work can help both parents better understand how the courts determined the amount and if a modification is possible later on.
In British Columbia, child support orders are generally created by looking at the Federal Child Support Guidelines. The guidelines are set up with specific directions as far as support amounts based on the income of both parents and the number of children involved in the order. Each province also has a specific table that shows what the support amount will be based on the paying parent’s location.
While these tables are available online for parents to view, it’s important to understand that this will not always be exactly what your order comes out to be. There are many reasons that the courts may choose to deviate from the standard guidelines, and these can include if the amount is deemed to create an undue hardship on the paying parent, if the child is over the age of 18 or if the child is no longer in school.
The child support amount may also be different from the guidelines if one parent has an income greater than $150,000 or is incurring extraordinary expenses in the care of the child. A lawyer who deals with family law can help you understand whether you have any grounds to request a deviation from the standard child support guidelines for your province and how you may be able to use the mediation process to come to an agreement.
Source: Legal Services Society, “What the child support guidelines are and how they work,” accessed July 30, 2015
Back-To-School Issues And Mediation
Even though August is technically still summer, it’s usually a busy time for parents and children alike getting ready for a new school year, meeting new teachers and readjusting to life on a schedule. For divorced parents, these issues may come along with other unique challenges. Parents often have to communicate more to keep each other updated on school functions and the children’s progress, and this can increase the chances of tension.
While it is generally considered best for parents to resolve issues as best as they can between themselves, keeping the best interests of the children at the center of the discussion, this doesn’t always work. If you and your ex-spouse have difficulty communicating in a civil, neutral manner, you may feel like it’s impossible to get on the same page.
In these situations, talking with a lawyer who deals with family issues about the possibility of using mediation to resolve the dispute is one solution. During the mediation process, both of you will have the chance to share your concerns and offer suggestions while your lawyers help you negotiate a mutually beneficial solution.
In extreme situations, it may be possible to conduct the mediation through the lawyers and not actually have to deal with your ex face-to-face, but this isn’t always necessary. Meditations always involve a neutral third party as well to ensure someone involved is not emotionally or financially invested in the case. If you have questions about how mediation may be able to help you resolve any back-to-school issues you and your ex are dealing with, we can help.
Actress Plans To Appeal Decision In International Custody Battle
Now that Kelly Rutherford has been forced to return her children to her ex-husband Daniel Giersch, the actress’ lawyer is telling the media that there are numerous appeals pending in the case. What started with the couple’s separation in 2008 has led to a drawn-out custody battle that is still ongoing.
The events over the past few months have led to renewed interested in the international custody battle, with Rutherford being granted temporary sole custody of the children after alleging that Giersch refused to let her see the kids on a visitation attempt. Giersch has been living in Monaco with the children since his visa expired, and Rutherford was traveling to the country to see the children.
The case continued over the summer, with two states denying jurisdiction of the case, meaning Monaco will now be deciding the custody arrangement. After she was forced to return the children to their father, Rutherford did attempt to take the case to the federal level but was rejected. Now her lawyer says that the actress is appealing, stating that the temporary agreement that led to the children residing in Monaco in the first place also included that the custody case would not be heard in “any foreign court.”
Jurisdiction is a very important matter in international custody cases, and a lawyer can help you navigate this complicated issue. It’s important to thoroughly understand which courts will be handling your case now, which may handle the case in the future and what actions on either parties’ part may result in a change in jurisdiction later on.
Source: Cambridge Times, “Kelly Rutherford has several appeals pending,” Aug. 21, 2015
Is A Positive Divorce Possible?
A Canadian couple has been making international news after posting a selfie online right after they got a divorce. The big deal? They’re side by side and smiling broadly in the picture. The couple captioned the photo with a note about how they had “respectfully, thoughtfully and honourably ended” their relationship and were moving forward as dedicated “parenting partners.”
In a world where it seems like there is story after story of contentious divorces and bitter custody battles, a post like that seems like a breath of fresh air. Many divorced couples are wondering how they too can be more civil or even friendly in their interactions.
Contrary to what it may feel like in the midst of divorce proceedings, where you are fighting over visitation, child support and who gets to keep the house, it is possible to have a positive divorce experience. Two key tenants of this are civil communication and a commitment to keeping the divorce — and the years afterward — as low-conflict as possible.
This may mean only communicating in writing and letting any correspondence sit for at least 24 hours before sending to ensure you aren’t firing off heated emails while you’re angry. It may also mean holding to the saying “fake it till you make it.”
In even the most amicable of divorces, every moment is not pleasant. There will be times of anger, sadness and frustration. It’s important to understand that even when you are feeling less than friendly, smiling and treating your ex as you would a coworker can go a long way toward keeping emotions in check and your interactions less stressful.
Source: SheKnows, “How to have a picture-perfect divorce,” Marci O’Connor, Sep. 08, 2015