Vancouver Island Family Lawyers
As part of the tool-kit in assisting parties to resolve their family law disputes, Stephen McPhee, K.C. is an experienced Law Society of British Columbia accredited mediator and med-arbitrator, and can provide mediation and mediation-arbitration services to parties in a family law dispute.
Click on the FAQs tab below to learn more about mediation and mediation-arbitration (med-arb) in the family law context. These FAQs are based on information from the Mediate BC website where you can find additional information to help you learn whether family mediation or family med-arb is a viable option to help resolve your family law dispute.
What is mediation?
Mediation is a process where an impartial, independent third party (a mediator) with no decision-making power attempts to facilitate a mutually acceptable agreement between disputing parties.
In addition, mediation can also be used to effectively negotiate marriage agreements and co-habitation agreements in accordance with the new property provisions of BC’s Family Law Act.
What are are the benefits of mediation in family law?
- Mediation is a practical, affordable, flexible and confidential process to address disputes of all kinds.
- The parties, not the mediator, make the decisions about the terms of their agreement that will form the basis for their future dealings with one another. This helps ensure that the agreement meets the specific needs, concerns and interests of the parties (and those of their children).
- Once the parties sign off on a Memorandum of Understanding that records their agreement, mediation is a legally binding alternative to going to court.
Why choose mediation to resolve family disputes?
- Mediation can be an accessible, less expensive and often faster way for separating families to reach fair agreements without the need to go to court.
- Being involved in a mediation process helps both parties learn better ways to solve current and future problems and take more control over what happens in disputes. Involvement in mediation teaches separating couples with children to address future issues in a constructive way that focuses on solutions over conflict.
- Mediation also allows for more flexible potential options than those that may be available under a court order where the judge may not have a family law background or may not be fully versed in the dynamics and history between the parties.
- Mediation is informal, private (confidential), and less stressful than court proceedings.
What can you expect from the mediation process?
- The mediator will usually arrange confidential, pre-mediation meetings with each individual. This is an opportunity to tell the mediator your side of the story and share specific needs, concerns and interests.
- The mediator will discuss the mediation process and how it may be adapted to meet your particular needs.
- A joint session is the next step. If it’s a face-to-face meeting, the parties will meet together in a private room to talk about the issues they want to resolve. Each person is given the opportunity to express their views and talk about what’s important for them.
- The process promotes respectful communication and ensures all discussions are balanced with a focus on potential solutions.
- The parties themselves decide what is best for them and their family. The mediator will write down what the parties have agreed to in a Memorandum of Understanding (MOU). This document summarizes the points of agreement between the two individuals.
- The mediator will ask the parties to get independent legal advice on the MOU or acknowledge that they are waiving the opportunity to do so, before they sign off on it.
What is Arbitration?
Arbitration is a process where disputing parties agree to have an impartial and independent third party decide the outcome of issues submitted by them for adjudication (a decision).
What is Med-arb?
Med-arb is a hybrid process that combines mediation’s key benefit of the parties creating their own solutions to a dispute with the assistance of a mediator and the guarantee of an end to the dispute by having an arbitrator step in and decide should the parties not be able to come to agreement.
- Before the start of a med-arb, the parties decide on a “trigger point” that will trigger a switch from mediation to arbitration. They then try to resolve a dispute with the assistance of an impartial med-arbitrator. If and when they hit the trigger point, anything that is left unresolved will be decided by the med-arbitrator. Parties may agree on another trigger point to switch back to mediation.
- The trigger point can be based on time, budget, impasse, etc.
How do you choose who to hire as a mediator or med-arbitrator?
It is important to select a mediator in whom you have confidence and with you are comfortable. It is a good idea to do some research before making a selection.
A good med-arbitrator will discuss the benefits and potential risks of the med-arb process and work with you to develop a framework that is appropriate for resolving your dispute. Points of discussion and items to include in the Med-Arb Agreement (or Agreement to Participate) are things like:
- When and how to transition between the 2 phases (mediation and arbitration),
- How to deal with the potential of bias,
- What may be admissible as evidence in the arbitration phase,
- When/how the med-arbitrator has separate meetings with each party (aka caucus), etc.
For more information about alternative dispute resolution processes like mediation and arbitration and how they can be used in family law matters, you may find the MediateBC website helpful.
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