Mediation provides transitioning families in Victoria with an alternative to the stresses and strains common of litigation. It’s an option that is available to you at all times—even if court proceedings have commenced—and is being utilized by more and more Canadians each year. Of course, mediation is not applicable in all situations and works best when each party is open to finding a solution together.
MEDIATION, as used in law is a process whereby disputing individuals attempt to settle issues in conflict with the assistance of an outside or “neutral” facilitator called a Mediator. It is a form of alternative dispute resolution (ADR), a way of resolving disputes between two or more parties with concrete results. It is intended to help alleviate the cost, the pain and sometimes destructive effects of an adversarial process (Court) and enable the disputing parties to establish agreements which are legally enforceable, which respect the interests and needs of all family members. MEDIATION is not therapy, nor is it a means of reconciliation; simply, it is an option to resolve matters within the legal process where co-operation by both parties are stressed. This process helps both parties to hear one another, and to minimize the harm that can come from potential hostility and “demonizing of each other.
Often people are unable to resolve issues because of the nature of the conflict, the lack of knowledge of what options are available and/or the inability to focus on needs other than their own. The Mediator brings them to a neutral (and safe) atmosphere and assists in identifying the issues and exploring the possibilities/ options available to them, then ultimately, in agreeing upon solutions to the disputes. The Mediator is trained to listen to both sides, generate constructive decision making and reduce the level of tension between the parties. The Mediator will always encourage the parties to have independent legal advice throughout the process.
Sessions are generally one to two hours in length and normally last from three to five sessions. Parties are billed after each session and each are responsible for one-half of the fee or such other arrangement as mutually agreed by the parties and the Mediator. The Mediator sees the parties together but if necessary he will see them separately. Other parties may be invited to join the sessions including the children of the marriage if this is agreed upon by the spouses and the Mediator.
The term “mediation” broadly refers to any instance in which a third party helps others reach agreement. More specifically, mediation has a structure, timetable and dynamics that “ordinary” negotiation lacks. The benefits of mediation include:
While a mediator may charge a fee comparable to that of a lawyer, the mediation process generally takes much less time than moving a case through a Court system. A case in the hands of Court may take months or years to resolve, mediation can achieve a resolution in a matter of hours. Taking less time means expending less money on hourly fees and costs.
While Court hearings are public, mediation remains strictly confidential. No one but the parties to the dispute and the Mediator know what happened.
Mediation increases the control the parties have over the resolution. In a Court case, control resides with the Judge however in mediation, the parties jointly obtain the resolution. Thus, mediation is more likely to produce a result that is mutually agreeable for the parties.
Because the result is attained by the parties working together and is mutually agreeable, compliance with the mediated agreement is usually high. This further reduces costs, because the parties would not have to employ counsel to enforce compliance with the agreement. The mediated agreement is, however, fully enforceable in a Court of Law.
Parties to mediation are typically ready to work mutually toward a resolution. In most circumstances the mere fact that parties are willing to mediate means that they are ready to “move forward” on their respective situations. The parties thus are more amenable to understanding the other party’s side and work on underlying issues to the dispute. This has the added benefit of often preserving the relationship the parties had before the dispute.
Mediation can be emotionally exhausting for the disputing parties however Mediators are trained in working with difficult situations. The mediator acts as a neutral facilitator and guides the parties through the process. The mediator helps the parties think “outside of the box” for possible solutions to the dispute, broadening the range of possible solutions.
I have been a family law mediator since 1985. If you have further questions about family law mediation in Victoria, please contact Robert J. Klassen Family Lawyer.