Mediation, collaborative negotiation, and arbitration
Going to court over a family law problem can be stressful, time consuming, and expensive. Learn how to use mediation, collaborative negotiation, or arbitration to resolve issues without going to court.
What you should know
When spouses, partners or parents separate, they have to sort out their legal problems. These problems can include deciding how to divide property and debts and who gets to stay in the family home. They also have to figure out whether one of them will pay support to the other. If there are children, more family law problems need to be worked out, including where the children will live and how decisions about them will be made.
Lots of people think going to court is the only way to deal with these issues. Sometimes that’s true. For example, if someone is violent, is threatening to take the children out of town, or is hiding significant property.
But most family law problems can be resolved without going to court. In fact, both the provincial Family Law Act and the federal Divorce Act require people to try to resolve their disagreements out of court. Among the approaches available are mediation, collaborative negotiation, and arbitration.
In mediation, the people in a conflict meet with a neutral person — a mediator — who helps them talk to each other and find a solution they agree on. Usually the mediator is a lawyer or another trained professional. A family lawyer who works as a mediator can also offer general information about family law.
Without taking sides or giving legal advice, the mediator:
listens to what’s important to each of you,
gets input from both sides on the issues, and
helps you and your spouse come to your own decisions and find a way forward.
If you and your ex have a child, the mediator will help you make decisions that are in the child’s best interests. The mediator can’t make any decisions themself; their goal is to help the two of you make decisions and reach an agreement about your family law problems on your own.
Advantages of mediation
Mediation is less expensive than going to court. You may be able to get free mediation help from a family justice counsellor (a specially trained government worker). Or you can contact a private mediator and ask about the cost and mediation process. Private mediators usually charge an hourly rate, and you and your ex will usually split the cost.
Mediation can lead to a resolution faster than a court action. And it’s a more private process. Because it’s confidential, any proposals made during mediation can’t be used against you down the road or if you go to court.
How long a mediation takes
Mediation meetings are normally two to six hours long. There may be more than one meeting, depending on how complex the family law problems are, and how many of them need to be resolved. Sometimes the mediator will meet with each of you separately. You may both be given extra tasks to do between meetings. These will usually include gathering additional documents and information.
A written agreement
At the end of a successful mediation, a mediator will sometimes prepare written minutes of settlement. These are notes, made during the mediation itself, that describe how you and your spouse settled your issues.
The mediator may or may not be a lawyer. When the mediator is a lawyer, remember that they are not your lawyer. But, they will sometimes prepare a more formal written document — called a separation agreement — after the mediation. It’s a record of how each issue was resolved. It also sets out the terms of the agreement you and your spouse made at the mediation.
When the mediator is not a lawyer, one person’s lawyer will usually prepare the formal agreement. Regardless of who writes the agreement, you and your ex should get independent legal advice from separate lawyers. You should do this before you sign the agreement. This involves each of you meeting with your own lawyer (if you have one) to get legal advice about:
what the agreement means
what rights and obligations it gives to each of you
how the agreement affects other legal options that might otherwise be available
Collaborative negotiation, also known as “collaborative practice” or “collaborative family law,” is a kind of negotiation where you and your ex each have your own lawyer. You, your ex, and your lawyers agree to do everything possible to reach a settlement without going to court.
In fact, it’s usually agreed in advance that if either of you starts a court case, the lawyers must stop acting in the matter. If you want to continue with a lawyer, you’ll have to hire a new one.
Collaborative negotiation is centered on the needs of you, your ex, and your children. The approach emphasizes the need for full disclosure, as well as a safe and respectful negotiation environment.
How it works
In collaborative negotiation, you and your ex meet, together with your lawyers, to work towards settling the issues. Your lawyer is your advocate and support through the negotiations. The number of meetings required will depend on how many issues need to be resolved and how complicated they are. Occasionally an agreement is reached after only one meeting.
Specialists such as counsellors, child psychologists, and financial experts may be used to help reach a settlement.
When you and your ex reach an agreement on the legal problems, your lawyers will put the agreement in writing.
In arbitration, you and your ex hire a neutral person called a family law arbitrator. The arbitrator’s job is to listen to your evidence and your arguments, and make a decision resolving your legal problems, like a judge would.
Sometimes arbitrators will use arbitration and mediation together in a process called mediation-arbitration or med-arb for short. You and your ex will work with the arbitrator to decide about the rules that will apply in your arbitration, including whether you will also use mediation.
A family law arbitrator is especially useful when:
you and your ex need to have someone else make a decision for you, and
court is too expensive or too stressful an option.
How it works
Before the arbitration, you and your ex will exchange documents about your family law problems. For example, you’ll have to exchange income tax returns if child or spousal support is in dispute.
At the arbitration hearing, the family law arbitrator — unlike a mediator or collaborative lawyer — acts like a judge. The arbitrator hears both sides, reviews the evidence, and then makes a decision. The arbitrator will give you their decision in writing.
Like mediation and collaborative negotiation, arbitration can lead to a resolution faster than a court action. It’s also a more private process. And the result of an arbitration is a decision that’s just as binding and enforceable as a court order.
Both approaches are very good ways of resolving family law issues. But mediation or collaborative negotiation aren’t appropriate in all cases. For example, they may not work well if there’s been family violence or child abuse. They also won’t work well if one party refuses to participate fairly in the process.
It depends on what kind of mediator you are looking for.
Family justice counsellors are trained mediators who may be able to help at no cost. They assist people with guardianship, parenting arrangements, contact, and child or spousal support disputes. At some Provincial (Family) Court locations, meeting with a family justice counsellor is one of the first steps in the court process. Phone 604-660-2421 in the Lower Mainland, 250-387-6121 in Victoria or toll-free 1-800-663-7867 elsewhere in BC. Ask to speak with a family justice counsellor at the nearest Family Justice Centre or Justice Access Centre. You can also visit the BC government’s Family Justice website.
To find a private family law mediator, phone the Lawyer Referral Service at 604-687-3221 in Metro Vancouver or toll-free 1-800-663-1919 elsewhere in BC, or visit their website. A private family law mediator is especially useful where the issues in dispute include how to divide up property and debts.
Family Mediation Canada has a directory of some family mediators. Call toll-free 1-877-269-2970, or visit their website.
Mediate BC keeps a list of family mediators in British Columbia. Visit mediatebc.com or call toll-free 1-877-656-1300.
Not all lawyers who are mediators are members of these groups.
Phone the Lawyer Referral Service at 604-687-3221 in Metro Vancouver or 1-800-663-1919 elsewhere in BC, or visit their website.
Visit the BC Collaborative Roster Society’s website or Collaborative Divorce Vancouver’s website for the names of member lawyers. Not all lawyers who are collaborative lawyers are members of these groups.
You can do an online search to see if there is a collaborative professional or group of professionals in your area.
Yes, it can be changed in two ways:
if both parties agree to change it, or
if a court sets the agreement aside.
If everyone wants to change the agreement, they can go back to mediation or collaborative negotiation. Or they can go to court. A court will generally not want to change an agreement that was fairly negotiated. But the court may make an order on different terms if there was an important, unexpected change in circumstances after the agreement was signed.
To find a family law arbitrator, phone the Lawyer Referral Service at 604-687-3221 in Metro Vancouver or toll-free 1-800-663-1919 elsewhere in BC, or visit their website.
The ADR Institute of British Columbia has a directory of some family law arbitrators. Call toll-free 1-877-332-2264 or visit their website.
You can also check the Arbitrators Association of British Columbia, which is an independent association of professional arbitrators and mediators. They too have a directory of arbitrators. Call 604-331-4454 or visit their website.
Not all lawyers who are arbitrators are members of these groups.
To help decide on a mediator, collaborative lawyer, or an arbitrator, you may want to meet with a few and ask some questions. Such as:
Do they belong to any professional organizations for mediators, collaborative lawyers, or arbitrators?
What kind of training have they received, and how long have they practiced as a mediator, collaborative lawyer, or arbitrator?
What kinds of family law issues do they handle? (Some mediators, for example, may only deal with disagreements involving parenting arrangements — including parenting time — and contact. Others only deal with financial or property issues.)
How much do they think the process will cost?
Who can help
Family justice counsellors in Family Justice Centres throughout BC can help with guardianship, parenting, child support, and related issues. Their services are free.
Call 1-800-663-7867 (toll-free)
Also check Unbundling Legal Services at unbundlinglaw.ca for family lawyers and paralegals open to being hired for discrete tasks on a family law matter.
Other options for legal help include legal aid, pro bono services, legal clinics, and advocates. See our information on free and low-cost legal help.