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When does mediation occur?
A productive mediation can be convened any time parties are in conflict, and the necessary information is available.
There is no law, rule, or principle that prohibits separated spouses from having a mediation immediately after separation, or, perhaps, even before they physically separate. Similarly, there is no real reason why a mediation cannot be convened the night before a trial. The fact is, however, that convening a mediation “too early” or “too late” can be problematic. In a family proceeding, a rush to settlement when one party has not yet metabolized the fact that the relationship is over may be fatal to the process. If one party has not dealt with the emotional fallout of a “surprise separation”, a conflicted meeting to discuss property issues can be both painful and pointless. In such circumstances, it may be wiser to convene an early mediation to talk about “interim arrangements” (to get the parties through the first few months), but it may not be realistic to expect much more. On the other hand, some folks are ready to make a deal the month after separating——every case is different.
By the same token, arranging the first mediation one week before trial can be unwise. In such circumstances, it’s likely that at least two pricey lawyers have already committed some significant resources to court preparation. Settlement odds are stacked against last minute mediations because attitudes have become positional and the stakes are too high. Both parties often have a “damn the torpedoes” type attitude at this late stage.
In other cases, however, there may be systemic barriers to early mediation. In a personal injury case, for instance, the injured party will need time to heal and recover, and time to assemble medical reports and (perhaps) economic data and information which cannot be quickly assembled. An injured Plaintiff will have no capacity to compel the doctors and economists to produce information swiftly, and, in fact, if the suffering is ongoing, and recovery incomplete, it may be some time before settlement can be discussed. In such circumstances, the best time for a productive mediation may be in the last 6 months before trial.
Either way, a well-planned mediation, which is properly scheduled, can avoid the accelerating costs and risk of litigation. A mediation convened before the parties reach the point of no return can be effective, and may limit the risk of snowballing issues that sometimes build as conflict lingers. That’s particularly so in family cases, and often in estate litigation. In those cases, most of the relevant facts, figures, and information that are needed to solve a dispute can be gathered relatively easily and inexpensively. In most cases, that means that the parties need to assemble tax information, and may need to commission an appraisal of the house, and gather up other third party materials which should be handy or easily gathered. This basic collection of material can often be assembled in a few weeks. Your mediator will be able to explain what additional information is needed at the outset of your contact.
In many cases, the proper time for mediation is something which can be discussed with the mediator, who can offer insight. Each case is different, but an early discussion with the mediator can help ascertain the best approach for setting a timeline for your case.
What usually happens in family mediation?
Let’s say two spouses have decided to separate. They know that their relationship is “over”, and they want to resolve their issues (parenting, money, property, etc) swiftly and calmly. They also know that they don’t want to go to court. The cost of litigation is too high, and they would rather spend their limited resources on College for the kids—not lawyers.
Unfortunately, in this hypothetical case, communication between the parties is not great. They have tried counselling, met with a mutual friend, and tried to resolve matters by email, but nothing seems to work. There are some hard feelings, and some definite differences about what’s right and what’s fair. These parties are at an impasse.
A referral to a mediator can help. This can occur when one spouse makes contact with us via the internet, or on a referral from another professional, or “word of mouth”. When that occurs, we will send both parties a short introductory email containing a short “intake” form to complete, asking for contact particulars, and some background information. It’s all confidential, and done on a “no obligation” basis.
In my practice, Elaine or I would then arrange a meeting time to interview each party (individually). At this first meeting, I also take a copy of the driver’s licence for each party, in accordance with accepted practices.
In the initial contact with each party, I explain the process to each party (briefly) and then enter into a general discussion about the separation and the issues. During this step, I will summarize the concepts of impartiality, and describe the process in a little more detail. As well, I will conduct a “screening” interview, to establish that the parties are suitable for mediation, and that there are no safety or violence issues. Disclosure, and the process for gathering relevant information, will also be discussed. This meeting is usually done within a few days of initial contact, and the meeting takes 20 to 40 minutes. At the end of it all, I may encourage each party to obtain some independent legal advice with a lawyer (before mediation).
Then, if I have determined that the mediation can be conducted productively and safely, and the parties are set to proceed, I will provide each party with my mediation agreement. This document will explain the procedural rights and obligations of the parties, and the fees that I will charge for the work that I’ll be doing. Assuming that’s all agreeable, we’re set to go.
My office will then set a date for the mediation, and invite the parties to gather any notes, documents, or materials that might reasonably be needed for the upcoming session. As stated, it’s common for both parties to be invited to see a lawyer before the mediation, to obtain some general understanding about their legal rights and obligations. That’s not necessary in every case, but it’s often wise. We’ll discuss that in advance.
Some parties want to bring their lawyer to the mediation, and that’s something that can also be discussed at the time. I am pleased to have counsel present and at any mediation, but sometimes uncomfortable in family mediation when one party is represented and the other is not.
The mediation itself can usually be set at an early and convenient time. While trial dates for court cases are often a year or more away, it’s usually possible to set up a mediation within several weeks. Often, Mediation can be held outside of normal business hours.
At this point, each party will also be asked to furnish the retainer (usually $1500 per party).
The day of the mediation, the parties arrive (with any paperwork they may need or want) at the designated place. Often the mediation will occur at my office, or at a mediation facility. Many of these are located throughout the Province. These facilities are “neutral” and convenient, but they’re not free. If there are multiple participants, however, my office may not be suitable. The options will be discussed in advance with the participants.
The mediation will be conducted by me and the parties, (and their counsel, if present) at the pre-arranged time. There are no adjournments (except if one of the parties is ill). In my practice, on the day set for your mediation, your case is the only scheduled matter: I won’t be distracted by anything but your case.
The mediation is conducted with the parties, in one comfortable room. Neckties and bad attitude are to be checked at the door. I will explain that, throughout the session, the parties must be respectful, polite, and calm, but I will encourage all to be forthcoming and frank. Parties will be encouraged to speak to each other in front of me, and will be expected to listen to each other. Only one party may speak at a time, but everyone will have a chance to speak. The conversation will be polite and respectful, but it may be frank and it can be emotional.
Having said that, parties will be reminded that I am not a marriage counsellor, psychologist, critic, or doctor. My presence is intended to press the parties forward to settlement, and I will keep the focus on that goal at all times.
We Canadians live in the world of “no-fault” divorce, and if the parties have mutual prospect of reconciling, I will try to help resolve the outstanding issues. I cannot and do not assist with reconciliation or other issues concerning the marriage or the divorce. I can, however, help create an understanding environment, and assist each party to understand and appreciate the issues, concerns, and objectives.
In session, after we have conducted an exploration of the general facts (the story), we will attempt to identify the issues of concern to each party.
In personal injury mediation, it may seem, to the uninitiated, that the process will be irresistibly simple. The Plaintiff wants to be compensated for his or her injury and loss. He or she will have a settlement number in mind that will be his or her “bottom line” for settlement. The insurer may be willing to pay 10% of that sum, or perhaps it’s 90%——but it won’t be 100% (otherwise, the parties wouldn’t be in mediation). At first blush, this scenario may seem to present a very simple one-dimensional problem that requires nothing more than compromise on both sides.
The reality, however, is often far different. It may be that the Plaintiff, as part of the process, feels the need to explain what happened, describe the suffering, and hear the insurer say that there is an understanding and acknowledgement of that. On the other hand, the insurer may want to the Plaintiff to hear that there is an issue on liability, or that it may be argued that not all of the Plaintiff’s suffering arises from the car crash. In the end, both parties may need to unburden themselves and come to understand the realistic limits of their respective position, and the risk attendant therein.
That process is found in family law mediation too: each parent will be encouraged to identify his or her expectations, worries and frustrations. From that, a list of identifiable issues will be developed. The mediator may encourage the parties to see if there is some commonality in the topics: identifying common interests and objectives can help build momentum and optimism. Moreover, if some of the “easy issues” can be resolved early on, that may be done to build momentum as well.
In some cases, it takes very little time to learn that in fact, there are only one or two “truly contentious” topics needy of address: often, there’s a deal to be made on many fronts. Other times, it’s clear that much.
At some point then, the parties may be invited to do some “brainstorming”. This part of the mediation will involve both parents being encouraged to offer up various ideas for resolution——without commenting upon whether each option is desirable, preferable, or practical. The idea here is to get some free and open discourse underway to determine all of the possible solutions and options that may lead to resolution.
Eventually, as this process continues, there may be some problem solving, and an evaluation of the options that “might work”. This discussion can often proceed with little influence from the mediator, or (more commonly) the mediator will assist the parties in exploring the topics. As the mediation progresses, the parties will be encouraged to consider all options, including those that may, initially, seem to be “outside the box”. And, as the process continues, the scope of disagreement often declines, and the parties may gain insight into the perspective and concerns of the other party.
During the discussions, parties will appreciate that the mediation process is voluntary, confidential, assisted, and result oriented. The Mediator is neutral and impartial, and provides information but not advice.
NOTE: elsewhere on this website, I have listed other articles and resources that may be of interest to participants.
At some point, if there is some agreement between the parties, or, perhaps, a complete settlement, the mediator will pronounce the resolution, and confirm that both parties accept. He will then record the terms in “minutes” (or some other form of written document that describes the settlement). The mediator will then review those terms with both participants (to insure that there’s no uncertainty or misunderstanding), and have the document signed. There will be a further conversation about commitment, and the obligation to comply with the terms, and then the parties will be released from the process. Both will be encouraged to see a lawyer about having the settlement document then converted into a binding Separation Agreement or Court order. In most cases, the work of the mediator will then be at an end.
Mediations of this type can rarely be done in less than 3 hours, and commonly take 4-8 hours. On occasion, complex mediations go into the evening or continue over more than one day, but mercifully, those are the exceptions.
To some, it may seem that even a 5 hour mediation to settle a divorce case is excessive. It is to be remembered, however, that where parties have assets, debts, children, property, and ongoing commitments, it’s no easy task to satisfactorily resolve everything quickly. That’s even more challenging where there are hurt feelings, suspicions, or frustration, anger, or disappointment. The mediator will work hard to keep the parties focused on the issues and continue moving forward in a productive fashion, but sometimes, parties want to “clear the air” and speak their piece: they “want to be heard and understood” even if the dispute or incompatibility remains. Keeping motivated, respectful, and empathetic is the task of the mediator.
What does it cost?
No mediator or lawyer can tell you in advance exactly what your mediation will cost. It’s impossible.
And, to make matters worse, because the process is private and confidential, there is no empirical data to tell us what the “average” cost of any particular type of mediation is. That information simply does not exist.
What I can say however, from my own history, experience, and anecdotal record, is the following:
- most mediators charge more than $250 an hour, and less than $500 an hour. Beware of anyone on either side of that range;
- most family law mediations take more than 3 hours, and less than 10 hours. Some take considerably longer, but it’s rare;
- most mediations lead to a resolution. I would estimate that the “success” rate (at least in family law cases) is significantly better than 70%. Of the theoretical 30% which do not settle, I would estimate that half of those at least manage to “narrow the issues” and come up with a partial resolution, and some reduction of the conflict;
- There is little doubt that the cost of a mediation will be less than half the cost of litigation. The average cost of a 5 day family law trial is now between $20,000 and $40,000 (to each party);
- the average cost of a family law mediation is probably in the range of $2,500 to $5,000.That cost is usually shared between the participants equally.
These are generalizations, but they may offer some insight into the costs of the process.
What happens if we settle?
Depending on the type of case you bring to mediation, you will generally emerge with a settlement document at the end of the day. For instance:
- In the case of a personal injury settlement, the parties may execute a one-page agreement and release which will record the particulars of the deal. All parties and counsel will sign. That document will be enforceable. The plaintiff won't receive a cheque that day (it usually take 48 hours to 10 days for that to occur), but the transaction will not be open for further review or revision;
- In the case of a family law matter, the mediator will often create Minutes of Settlement (a type-written document which outlines the terms of the resolution) and all will sign. The parties may then be encouraged to have that converted into a Separation Agreement by their lawyers, or a Court Order by counsel, but that’s a topic for further discussion. In some cases, a properly trained and insured mediator will “offer” to do the Separation Agreement or Court Order (at an additional cost) to finalize matters, but that step can be explained at the end of the process. If that is the chosen path, both parties will be required to obtain Independent Legal Advice;
- In the case of estate litigation, the process will be similar to the above description. However, since there may be multiple parties, infants, and tax and accounting issues that require attention, the settlement documentation may be “tailor made”, and will often describe additional steps in the process to follow;
- In other “one issue” cases, it’s often possible to execute all the necessary documents and a release at the end of a successful mediation, and that will conclude everything.
Who can work as a mediator?
Mediation is not wholly regulated or controlled, but lawyers who work as mediators are required to have credentials and training approved by the Law Society of British Columbia.
Most mediators are lawyers, former Judges, social workers, or others who have worked in a field related to law. Your mediator’s credentials should be available for review.
What if we can't settle?
If a settlement is not reached at mediation, your mediator will likely recommend the following:
- that each party obtain some independent legal advice about the issues, the options, and the best course forward;
- a further mediation can be arranged, after additional information or advice is gathered, and, possibly, after the dust has settled and when calm again prevails;
- that each party consult with litigation counsel to discuss litigation options, and the costs thereof;
- that the parties consider Arbitration.
Who will be present for the mediation?
As mentioned above, there are many different ways to mediate, but there are only a few defined or specific rules. Generally, however, it’s safe to say that in most mediations:
- only the parties and the mediator attend (sometimes with counsel);
- girlfriends, neighbours, and other “supporters” are not permitted. In some cases, however, by prior agreement, a party may be permitted to have help or contact with an outside resource;
- the parties are welcome to attend with their counsel, but it’s not a requirement. I generally discourage mediation where only one party has counsel in attendance, and the other does not, but there may be exceptions;
- interpreters must be arranged in advance, and will be encouraged where needed.
What do I need to bring to mediation?
For mediation, we require that you attend with an open mind, and a willingness to listen. If finances are in issue, (something we’ll discuss in advance) we may ask you to bring your last three tax returns, relevant financial statements, and a current list of assets and liabilities. Other materials might include pension statements and other banking materials, but again, it’s best to discuss that with the mediator. Also, if you have a lawsuit underway, I may ask to see the pleadings.
In personal injury matter, I will like to have briefs from both counsel, but it’s not mandatory. Copies of the key expert reports should be shared in advance. If counsel require me to conduct a detailed review of the evidence, I am happy to do that, but I will record and charge for that time.
In all other cases, a discussion of the requisite materials can occur on the first meeting.
Where can I get more information?
If you are wanting more information about mediation and arbitration, the internet abounds with material. Some of the information is current and accurate, but some is not. Use common sense and caution when reviewing this material.
Some of the better sources for British Columbians would include:
1) the BC public information website found by searching "mediation" at www2.gov.bc.ca
2) the website found at mediatebc.com
3) the website www.familylaw.lss.bc.ca, which also contains some interesting video links