Divorce mediation is a highly effective method for separating couples to discuss and decide on the details of their separation with the assistance of a neutral facilitator - the mediator.
How do you get started with divorce mediation?
1. You and your partner decide at separation that you would like to limit your legal expenses and approach your issues in a productive, realistic and amicable manner. You would rather save your money for your children and for your retirement, not spend it on fighting through lawyers! You jointly retain a divorce mediator to help you organize, discuss and document the detail of their separation.
2. You and your partner retained lawyers who have been preparing your case for a family law trial for likely over a year. Resolution has taken so long that a number of interim court applications have been required to bring some order into the family. Shortly before the date set for the trial to begin, and usually tens of thousands of dollars of legal fees into the case, you and your lawyers attend mediation in a “last ditch” effort to settle matters. The mediation almost always succeeds. Only approximately 2% of family law cases actually make it to trial[1], which begs the question of why people don’t start with mediation.
Divorce Mediation Process
Different mediators follow somewhat different practices but most will meet with each person individually first (in British Columbia, this is a requirement). Once the mediator is comfortable that mediation is appropriate and if both people would like to work with the mediator, subsequent meetings would normally be all together by video chat, phone, or in person. Some mediators will do “shuttle mediation” (which involves the mediator going back and forth between the spouses) but this practice can be less effective so some mediation practices will be focused on helping spouses have discussions directly with each other.
The mediator’s role is also to help keep the conversation on a productive track, coordinate sharing of documentation, organize meetings, and suggest details that are normally addressed in a Separation Agreement that may be appropriate to consider.
The mediator may encourage conversation about each person’s needs and goals (also referred to as interests) in order to try to achieve a creative solution that meets everyone’s needs. An interest is a deep motivation such as “I would like to be financially secure”. In contrast, a position is the stated desire for a specific outcome such as “I want the house”. The mediator may discourage discussion of positions, particularly at the beginning of the process, in order to do the groundwork of uncovering the deeper interests which will increase the likelihood of reaching a mutually satisfactory resolution.
The classic mediation example is the story of the two people who were fighting over an orange. They both wanted the whole orange but were going to settle for cutting the orange in half. However, they started talking and discovered that one person wanted to make juice with the inside of the orange and the other wanted to make marmalade with the orange rind. By discussing their motivations and goals, they were able to reach a win-win solution that worked better for both of them than just cutting the orange down the middle. While this is a simplistic example, there are many ways in which creative options can be crafted on virtually all family law issues to suit the needs of your particular family.
How long does divorce mediation take?
When people have made the decision to attend mediation from the beginning, many are able to get to the terms of an agreement in 1 - 3 joint meetings of 1 – 2 hours each, although it really depends on the number of issues to be addressed, the complexity of those issues, and how much has been verbally agreed upon ahead of mediation. Thereafter, the draft Separation Agreement will be prepared by either the Family Mediator (which is allowed in some jurisdictions, such as British Columbia, but not allowed in others, such as Washington State) for the parties to review and there is usually some more discussion required to finalize the wording that both people will find acceptable. We provide a range of flat fee/ fixed timeline services and we have found that the vast majority of our clients finish our process with their Separation Agreement in hand within 4 weeks of getting started.
Mediating on the eve of trial with lawyers and the pressure to reach agreement, mediation tends to be scheduled for a whole day and often continues from the morning well into the evening hours.
Benefits of Divorce Mediation
Some of the benefits of this process are:
it has a very high success rate (no matter how far apart people are in terms of their desired outcomes, family law mediation is almost always successful);
it is private and doesn’t become part of the court record;
it allows for creative solutions specifically tailored to your family;
it is cost-effective;
it can be usually scheduled quite quickly;
it helps maintain positive relationships by encouraging respectful communication and focusing on mutually beneficial outcomes.
People tend to be more content with an agreement that they helped craft than an order that a judge who doesn’t know the family handed down after reading affidavits and/or listening to a few witnesses. One British Columbia Supreme Court Justice famously warns people at Judicial Case Conferences (a brief mediation-type process with a judge that people in the court process must attend before they are allowed to file any applications) that: “There are no winners in family court. On a good day, I can make both parties unhappy.” This is sarcastic but fair warning that the court is not equipped to deal with the intricacies of families. When people are satisfied with the agreement that they have had a hand in negotiating, their compliance with the terms of the agreement increases. This reduces the potential for future conflict.
Benefits of Specifically Online Meetings for Divorce Mediation
increase in scheduling flexibility and convenience
ability to manage family law matters in the comfort & privacy of your own space
increase in efficiency & speed of resolution
decrease of emotional triggers, like body language, facial expressions
increase of physical safety (from illnesses and from any possible aggression from your spouse)
lower overhead & lower cost than office-based services
I find that through online mediation many clients are better able to focus on the business of their separation without getting bogged down in the emotional issues that can arise when meeting in the same physical space.
Downsides of Mediation
Mediation has very few downsides. There is a potential for a slight delay if the mediation process doesn’t successfully resolve some or all of the issues. There is a potential for a skewed power dynamic in the relationship to result in an unfair bargain (this could happen if: one person is significantly more educated than the other; one person has been in charge of the finances for a long time; one person has been emotionally, physically, sexually, or financially abusive to the other; etc.) The mediator will assess for risk factors before mediation begins and will advise if mediation seems appropriate in the circumstances. Many of these risk factors can be adjusted for by attending with a lawyer, attending at a distance by video chat, and obtaining expert advice as needed (for example, from an accountant).
In what situations is divorce mediation appropriate?
you have children and you’re committed to a healthy separation process;
you don’t have children but you have property, debt and/or spousal support issues to sort out and you both want to get your separation resolved so that you can move on with life;
you are both comfortable speaking up for what you feel is fair in the presence of a mediator and you both want to reach an agreement that feels fair to both of you;
you are in agreement about all issues and just need a legally-binding Separation Agreement to be prepared;
you are disagreeing about a few issues but you have reasonable communication and you’re both willing to be somewhat flexible to reach a mutually beneficial outcome;
you have difficulty talking at all without arguing but you don’t want to waste time and money in court and you think that you can both agree to a fair outcome with the help of a mediator.
When is divorce mediation mediation inappropriate?
Some red flags that indicate mediation is likely inappropriate:
there are severe power imbalances in your relationship and you’re not comfortable speaking up for yourself;
at least one of you has an active drug or alcohol dependence, or emotional, mental health or personality disorder issues that would likely impede effective participation;
at least one of you is unwilling to cooperate with financial disclosure;
at least one of you is unwilling to make any compromises.
How far apart is too far apart for mediation to be successful?
How “far apart” people are in terms of their desired outcomes is a relative concept. For example, I have attended mediations in which the settlement offer and counter-offer prior to mediation were $20,000.00 apart and I have attended mediations in which the offer and counter-offer were millions of dollars apart. In each scenario, the very human instinct of my clients was to feel trepidation and concern that the disagreements were too entrenched to obtain a successful outcome without the intervention of a judge. However, mediation has an extremely high rate of success. There is just something about having the opportunity of working together with a mediator who can help settle the mess of issues (thereby eradicating the otherwise pending stress, uncertainty, and legal fees) that motivates people to reach agreement when agreement has previously been elusive. Mediation is extremely effective for resolving family law issues.
Mediator Accreditation
Lawyers who are also family mediators are highly trained to assist with dispute resolution specifically in the context of separating couples. For example, in British Columbia, a lawyer who would like to provide family mediation services must complete approximately another 100 hours of training in order to become accredited by the Law Society of British Columbia as a Family Law Mediator.
For non-lawyers, mediation is entirely unregulated. Do your research to find a skilled and experienced mediator. Buyer beware!
There are free mediation services provided by non-lawyers at non-profit and/or government agencies in some provinces and states however they are usually only allowed to help people regarding parenting and support issues – in most jurisdictions, they cannot deal with property and debt. It’s a good option though if funds are tight and your issues are limited to what they can address.
Drafting a Legal Separation Agreement
The purpose of mediation is to reach an agreement and then the terms of agreement need to be documented in some manner.
In British Columbia, only a mediator who is also a lawyer can draft a Separation Agreement because it is a legally-binding contract (non-lawyers are obviously not allowed to practice law and drafting an agreement is considered practicing law). If you would like a mediator in this category who can prepare your legally-binding documentation at the end of the process, you will need to look for a Family Law Mediator who is accredited by the Law Society of British Columbia.
Mediators who are not lawyers are limited to preparing a Memorandum of Understanding after mediation because it is not a legally-binding document. It is simply a summary of the terms that were tentatively agreed upon in mediation. When you leave mediation with a Memorandum of Understanding, you will have the extra step and expense of taking the Memorandum of Understanding to a lawyer to have a Separation Agreement prepared if you would like the document to be legally-binding -- which is the entire purpose of having an agreement in writing for most people!
Some mediators who are lawyers offer only a Memorandum of Understanding as part of their initial mediation fee and then charge extra fees for preparing a legally-binding Separation Agreement.
How does legal advice fit into divorce mediation?
Even if your mediator is a lawyer, they do not represent either party when acting in the role of a mediator. This means that the mediator can give you legal information but not cross over the line into legal advice. This is a bit of a fine line but essentially means that the mediator can give you information about the law, such as the factors that would normally be considered regarding particular issues, but cannot advise you as to what you should do.
If you would like to get legal advice regarding your divorce, you could speak to a family law lawyer about your case before or during mediation, and/or before signing the Separation Agreement. Many people attend mediation without a lawyer and then may choose to seek legal advice in between meetings if they wish to get an opinion on a particular issue or get peace of mind about the direction of the settlement discussions. This option saves money because you are doing most of the work with the mediator and then only paying your lawyer as you feel is needed. However, some people choose to attend mediation along with a lawyer, either because they would like to have the ability to obtain legal advice on the spot regarding possible settlement options or because they simply feel more comfortable discussing options with the help of someone “on their side” in real time.
Legal advice is recommended but it is optional in British Columbia and each person is free to decide whether or not they would like legal advice regardless of what their spouse chooses.
We are focused on efficient & amicable separations. It’s what we do. In fact, we’ve helped nearly 1000 couples peacefully transition into a new stage of life. We’re here to help.
[1] Mary Bess Kelly, “Divorce cases in civil court, 2010/2011” Statistics Canada catalogue no. 85-002-X: http://www.statcan.gc.ca/pub/85-002-x/2012001/article/11634-eng.htm