Family Mediation is an assisted negotiation. It is an alternative to trying to solve a conflict on your own. It is also an alternative to going to court. Mediation is a process for problem solving. Settlement between two people in conflict is the ultimate goal.
Family “Mediation is when two persons with a conflict sit down with a neutral third party in an attempt to come to a peaceful resolution of that conflict.” Kessler, S. Creative Conflict Resolution: Mediation, Participants Guide (1978).
A Professional Mediator – a neutral third party facilitator – helps two or more people to make mutually agreeable decisions. The focus is on making good decisions for all, rather than a win-lose mentality. This is particularly important for a separation or divorce, where children will be affected by the decisions their parents make.
As Accredited Family Law Mediator Michael Butterfield said, “Rather than one person winning, and another losing, a good resolution is one that both parties can live with.” Once the parties have come to an agreement on the issues, a lawyer creates a legally binding agreement. This can be filed with the court.
Family Mediation is commonly used to resolve separation and divorce issues. This may include decisions about:
- children, parenting time, rights, responsibilities, and schedules.
- financial support of children and/or spouses.
- child support and spousal support.
- division of assets and debts.
Family Mediation can also help resolve other family conflicts and decision making. For example, families can use mediation to make decisions regarding an elderly parent or an estate. Family Mediation is becoming common in “Elder Law”disputes and wills variation.
Family Mediation can be helpful in resolving conflicts, because it can deal with both practical issues and emotional ones. When people are in conflict, there are multiple “interests” involved.
What is the difference between an “issue”, a “position”, and an “interest”?
ISSUES: The problems that need to be resolved
Example: Two people are divorcing, and they have to decide how to divide or share their main asset- their home.
POSITION(S): One person’s solution. Usually a premature solution among options.
Example: One person (or both) insists that they should keep the family home to live in.
INTERESTS: Motivating factors for a Position. This is varies from person to person.
Example: Each person may want to keep the home, because they want to maintain stability for their children.
Example: One person may fear finding suitable housing in their price range.
Example: Another may not want to give up their dream of home ownership.
Example: Someone may want recognition for the rennovations and updates they made to the home.
Interests are the underlying drivers of decision making, and can include: concerns, fears, goals, needs, hopes, feelings and values. For example, decision making in a divorce may also include a discussion of one’s fears or hopes for their future stability, retirement, or the well-being of their children.
A good Mediator will help the parties to find common ground on their interests, and work towards solutions. They will help draw out a variety of possible solutions.
On of the reasons mediation works, is that it allows people to give and take, according to their priorities.
For example, one person may be willing to give up their share of the family home if they have enough funds to purchase a condo in the same neighbourhood. Another may be willing to give up some of their share of the equity in the home, in order to keep their entire pension.
Other parents may decide to keep the children in the home, and have each parent find alternative housing for times when it is not their parenting time. This method of co-parenting is called “birdnesting”.
The key thing to remember is that one solution does not fit all. Each family has its own sets of needs, wants, priorities, and capabilities. Unique solutions are possible with mediation.
Mediations can be used to settle all or part of a family law claim.
In B.C., anyone can call themselves a “Mediator”. Clients are advised to look for a registered or certified mediator, such as a lawyer with Accredited Family Law designation.
Have more questions about Mediation? Call us at Butterfield Law (250-382-4529), or consult the B.C. Ministry of Justice.
Jayne Embree, M.A.
Jayne holds a Masters in Psychology and is a highly experienced Divorce Coach and Child Specialist. She is currently working with the Administrative and Human Resources Departments of Butterfield Law.