Mediation & Arbitration

What’s the difference between mediation and arbitration?

There are various forms of achieving a separation agreement and the terms of a divorce. When former spouses are fleshing out the terms of their separation/divorce and disputes arise, they may enlist the services of a neutral mediator to help resolve issues. In mediation, the mediator does not make decisions, issue orders or find fault. In arbitration, the arbitrator hears the disputed issues and makes decisions based on the evidence presented. Very much like a trial in court, arbitration involves testimony, evidence, and finally, the arbitrator handing down a legally binding decision that all parties must honour.

Mediation is a legally binding alternative to going to court that is also affordable, flexible and confidential. Family mediation is used to resolve all aspects of family disputes including separation, divorce, parenting arrangements, and property division. There is also child protection mediation in the event of disputes over the safety and well-being of a child between the parents/guardians and provincial child welfare workers.

The process of arbitration is more formal than mediation. Your arbitrator may be a retired judge or a senior lawyer. Whichever process is used, mediators and arbitrators share a common goal, and that is to resolve disputes and issues fairly.

Herr Law Group has four senior lawyers who work in this area as arbitrator and mediators. We take a practical, goal-oriented approach to help you find creative, constructive, cost-effective ways to resolve your family matters.

How can I prepare for mediation?

First and foremost, be sure to select a mediator that is not affiliated personally or professionally with any of the parties involved.

It’s a good idea to write down a description of the dispute including:

• The issues you think needs to be resolved;
• The facts or circumstances that led to the dispute;
• What you and the other party disagree about and what you agree about; and
• What steps have already be taken to try to settle the dispute.

If you have any documentation to assist with a resolution, including photographs, receipts, statements and invoices, make photocopies to share with the other party, the mediator, and be sure to also have the original paperwork with you.

The Government of BC’s website covering mediation suggests you ask yourself the following questions:

• What is the best outcome I could reasonably hope for?
• What is the worst outcome I should prepare for?
• What am I most concerned about and what can the other person do to respond to those concerns?
• What is the other person most concerned about and what can I do to respond to those concerns?
• What are my options if I do not reach a settlement in mediation?

What can I expect in mediation?

Mediators help ex-spouses reach terms of their agreement via communication, information gathering and option development. Their role is to manage the negotiations, establish rules for conduct, keep the lines of communication open and the discussions focused. They will listen and help develop ways to settle disputes.

In preparation for mediation sessions, it’s possible the mediator will first ask to meet with each party and their representative separately. Ex-spouses should note that the mediation process is designed to keep the control of the outcome in their hands, and not the mediator’s.

Mediation sessions are in-person and typically last about three to four hours. Because the process is very flexible, the pace can be adjusted to ensure both parties are comfortable, and are afforded the time required for clarity and comprehension of what’s being discussed. For more complex cases, a session may last a full day or more.

A mediation session often begins with an opening statement from the mediator, followed with each party summarizing their dispute and presenting their facts. Then the mediator will ask pertinent questions to identify the interests and establish the desired goal that includes each party’s interests. The mediator will encourage the parties to discuss options that will achieve a resolution, and at the same time the mediator will offer their analysis of the options, without taking sides. The process ends when all parties agree on a resolution.

Do I need a lawyer at my mediation?

It is recommended to have your lawyer with you for all family mediation sessions. Trying to settle your own case without having prior legal advice and/or attending a mediation session alone could set you up for unfair proposed settlement terms and ultimately put you in a position to start the process over, which means wasted time and more costs.

Although not taking place in a court, the mediation process is treated with the same importance and respect. A lawyer would never send a client to court by themselves. Your lawyer is on your side, and will be there to offer advice or help clarify any terms you do not fully understand.

Along with your legal representative, you are also welcome to bring a family member or a friend for support to your family mediation, or depending on the dispute, you may also bring an expert on the disputed subject to help validate your position.

MacLean Family Law recommends having one of our senior lawyers present with you at family mediation. Including one of our highly dedicated, experienced family lawyers or mediator-paralegal right from the outset, ensures that you have help in assessing and choosing the dispute-resolution approach most right for you. We’ll educate, guide, and support you all along the way to ensure that you fully understand your legal rights, options, and obligations and that you’re empowered to make informed decisions and take carefully considered actions that lead to your desired family outcomes.