How Mediation Services Can Help In Your Separation or Divorce?

If you are facing separation or divorce, disputes are likely to arise between you and your former spouse — whether with respect to the division of the property and assets you own, who will stay in the house you owned together, or custody of your children.

Although these differences can at first appear unresolvable, litigation in court is not always necessary. While it is common for both spouses to initially take diametrically opposed positions on several issues, sometimes all it takes is an experienced mediator to highlight the strengths and weaknesses of your position. When each side can concede a little without fully compromising his or her position, it is possible to eventually reach something close to a “win-win” outcome.

Revisions to BC’s Family Law Act in 2013

In 2013, British Columbia’s Family Law Act (the “Act”) was amended to promote mediation as a means of dispute resolution that should always be tested and exhausted before proceeding with litigation. The revisions to the Act encourage lawyers to make recommendations to their clients that align with the principles of compromise and the avoidance of litigation, and to encourage settlement wherever possible. This is so whether the dispute surrounds the division of assets or custody of children.

Encouraging mediation is of particular importance when it comes to family disputes. Such disputes can have a significant impact on the well-being of both parties and perhaps more importantly the well-being of the children involved and their home life.

What is Mediation?

Mediation is a means by which parties may reach an agreement without resorting to litigation. It generally involves meeting your former spouse with an impartial professional present and having an open, frank discussion, including potentially the strengths and weaknesses of various options. Mediation takes place on a “without prejudice” basis, meaning that statements made by each party, and facts admitted or conceded to during mediation cannot later be used against the person if an agreement is not reached, and the matter proceeds to litigation.

A good mediator will objectively highlight the legal strengths and weaknesses of both parties without deciding the matter. He or she will facilitate and encourage dialogue between the parties to draw out the aspects of the dispute where each party may be willing to take a softer stance, and make concessions. The goal is to encourage an agreement where the parties meet at a midway point or at least make complementary concessions that work, whether for custody or access arrangements, dividing property and assets, and/or deciding support.

Why Avoid Litigation?

Again, the idea of compromising on a position that you firmly believe to be correct can be challenging. However, there are serious disadvantages associated with taking a rigid position and proceeding through the litigation process when it comes to all types of family disputes:

• Litigation is Expensive. Litigating a dispute to its fullest extent involves many steps, including full discovery of all relevant evidence to connecting to the issue in dispute. It generally requires both parties to be examined under oath, and a hearing in court that can last multiple days. The total amount that you will spend on legal fees will be significant, as lawyers charge by the hour, and these processes, in combination, can take quite some time. If you succeed, you may recoup some of these fees – however, you do not usually recover all of your fees. If the other side wins, you will incur not only your own legal costs, but will be required to pay a substantial portion of theirs as well.
• Litigation is a Lengthy Process. Due to the necessity of engaging in a comprehensive evidence collection and fact-finding process, and the length of time that it can take to get a matter before a judge, reaching an outcome in your case can take an unduly long time. This can leave you anxious about the outcome of your case for months, and may considerably weigh on you, affecting other areas of your life.
• Litigation is Adversarial. Litigation is by its nature conflictual as it sets the parties up against each other, as applicant and respondent. If you litigate, there is little ability to compromise or to soften your position, as admitting any weakness in your case will necessarily give leverage to the other side. Litigation encourages both parties to remain rigidly set in their positions, which can cause ongoing hostility and frustration. These emotions can come to affect your personal life, and the lives of your children, if they are living with you. Further, litigating is a gamble. If you win, great, but if you lose, the loss can be significant and have negative consequences for a very long time.

Advantages of Mediation

If you are willing to compromise in your position to at least some extent, mediation will generally be preferable to litigation. It is faster, less tedious, and will almost always be less expensive overall. If there are no issues of serious mistrust between you and your former spouse, and if you are prepared to grant at least some concessions, and admit to the weaknesses in your own case, mediation is a fantastic tool.

It is of course wise to seek counsel to guide you through the mediation to ensure you put your best foot forward. A lawyer will help elucidate the legal arguments in favour of your position and communicate these strengths to the other side. A lawyer will also help explain to you the legal implications of agreeing to a particular arrangement or making certain concessions.

Speak to Paine Edmonds LLP for a Family, Divorce or Mediation Services Lawyer in Vancouver

At Paine Edmonds LLP, we can assess your family situation and inform you if mediation is recommended. As part of the intake process, we will screen for any power imbalances to ensure that both parties are able to negotiate a fair agreement. Our family and divorce lawyers in Vancouver provide mediation services routinely. For alternate dispute resolution using experienced legal counsel, contact us at 604-683-1211.