Mediation and Collaborative family law

Family dispute resolution might not be right for you if there is:

• high conflict
• a power imbalance
• family violence.

Before you take part in a family dispute resolution process think about whether there are any safety concerns, and whether you will be able to have your voice, and your concerns or wishes about your child, heard. Think about whether you will be pushed into agreeing to a parenting arrangement or giving up your entitlement to property because of the nature of your relationship with the other party. You could end up with an agreement or a consent court order that is not appropriate, and difficult to change.

Accredited mediators and other family justice professionals recognize the importance of screening cases to help determine whether a given dispute resolution approach is suitable in the circumstances. Screening tools are often a list of questions or a guided conversation that professionals use to find out what family dispute resolution process may be appropriate, or not, for your case.

Remember to meet with a lawyer to get legal advice and information about how the law applies to your circumstances before starting any family dispute resolution process, and before you make a final decision or agreement.

Mediation (me-dee-AY-shun) is a private process to help people resolve differences. It is a way of working out legal disputes without going to court.  It is an opportunity for people who disagree to meet, together or separately, with a person called a mediator who encourages them to communicate in a respectful way. Mediation is always voluntary. This means nobody can be required to participate if they don’t want to. Both parties must be willing to participate in mediation, and feel comfortable doing so. 

Mediation may not be appropriate where there is family violence or significant power differences between the parties. You should speak with a lawyer to learn about your rights before you participate in the mediation and before you sign a final agreement.

Mediator (me-dee-AY-tor) is a person trained to help people resolve differences. Mediators are neutral and unbiased—meaning they don’t favour one participant over the other. Some mediators are lawyers, but mediators do not give legal advice or make decisions for others. Mediators are not regulated in Nova Scotia. This means there are no standards for mediators and no government body you can contact to express any concerns you may have about the ethical practices of your mediator or the mediation process. When choosing a Mediator you may want to ask about the Mediator’s training and ask about referrals from other people who worked with the Mediator in the past. Many Mediators are members of professional associations that have standards of practice and routine training opportunities. Because mediation may happen virtually you are not limited to hiring a trained mediator who works in Nova Scotia.

Mediators are not counsellors.  Their role is to stay neutral while facilitating a discussion between the participants who have an issue that they wish to resolve. They will not decide who is to blame or impose an agreement. The mediator helps you plan for the future.

Mediation may be a good fit if there are no concerns about family violence or a power imbalance between the participants. In family law a mediator may help participants reach an agreement on issues such the parenting arrangements, child support, spousal support, and a division of family property and debts. If an agreement can be reached then it is written down and if signed by everyone involved the agreement will be binding. This means the agreement can't be changed except under certain circumstances.   Do not sign an agreement without getting legal advice first!

It starts with all the parties involved agreeing to try mediation to resolve their problems.

The mediator will generally first meet with each of the participants before the mediation to gather some information, screen for family violence and power imbalance(s), and to explain to the participants what to expect.  If the mediator determines this process is appropriate for your family’s circumstances then the participants will set a date to start the mediation.  In family law several sessions are often required to share information and discuss the issues and reach an agreement if possible. The mediator will help the participants identify the issues they wish to talk about and hopefully resolve.  The mediator will listen to what is important to each participant and help them come to their own decisions about the future. 

Mediation is a process of compromise and ‘give and take,’ where the aim is that neither participant will be a winner or a loser.  Remember, the mediator does not represent either participant, and is not a decision-maker. If an agreement can't be reached on one or all of the issues, or the process is not a good “fit”, then mediation should end. The participants may wish to try other non-court ways to resolve their issues where there is an advocate present, such as negotiation with the help of lawyers, or collaborative family law.

Mediation depends on cooperation and goodwill between the disputing participants, so mediation may not work out if one of the participants is unwilling to cooperate or compromise, or is not prepared to willingly share important information that is needed to reach an agreement. 

Mediation also may not be effective if one of the participants has a significant advantage in power over the other.

Mediation is generally not appropriate if one of the participants perpetrated or experienced family violence directed at the other participant or the children. This includes: physical abuse, sexual abuse, psychological abuse, financial abuse; harassment, stalking; threats of harm to people, pets and property or actually causing that harm; coercive and controlling behaviour.

Mediation is voluntary, and you should feel safe and comfortable throughout the process.  Consider mediation only if you feel confident expressing your views, and feel that you and the other participant will be on an even playing field in discussions, and are likely to reach an agreement. 

If you are not comfortable during the mediation process you should speak up either with the other participant present or ask for a minute alone with the mediator to explain your concern(s). This is a voluntary process and if you are uncomfortable remember that you do not have to continue.

Pre-Mediation Stage
This is a stage where a mediator prepares for mediation. It is used to assess the dispute and the parties' willingness to negotiate and to arrange the meetings. At this stage the participants get information about the process and how to prepare for the first meeting. This is also an opportunity for the mediator to meet with each participant privately to screen for family violence and power imbalance.

Independent Legal Advice
It is important to get independent legal advice before agreeing to participate in mediation and before an agreement is finalized. It is important to be informed about and to understand your legal rights and responsibilities.

Commitment Stage
This is generally a session where the mediator explains the process and procedures to the participants. The participants explain their issues, priorities and hear those of the other participant(s). This is the first opportunity for everyone to learn if there is a willingness to work through the issues in order to reach a settlement. The participants begin to develop a cooperative relationship and some confidence in the mediation process and the mediator.

Negotiation Stage
The participants develop a mutual understanding of the interests underlying the issues and generate possible options for settlement. Where issues of disagreement exist, objective criteria are used as tools of persuasion. The mediator may meet separately with participants (caucus) and have joint sessions. The parties with authority to settle must be part of the negotiations at this stage.

Settlement Stage
Options for settlement are evaluated based on general principles and specific objective standards. Options are evaluated as possible solutions. Outside advice regarding possible solutions is sought. The processes for reaching and documenting agreement are discussed. When all participants are satisfied with the solutions, an agreement outlining the areas of agreement in clear, specific language is prepared.

Voluntary Participation
Participants who enter into mediation do so freely. They are not forced to negotiate or settle but do so of their own free will.

Timeliness
The participants set their own timelines for the process. It is not controlled by court dates or waiting periods. Normally, the process can be arranged directly, between the participants and a mediator.

Confidentiality
Mediation sessions are held in private and all proceedings are confidential to the mediator and the participants. Mediators usually cannot be called on to give evidence about any matters that were discussed during the mediation in any court action that may follow the mediation.

Supports the Participants
Participants who reach their own decisions through mediation have more influence on the outcome of their dispute as they remain in control of the decision-making process. This is very different from arbitration or going to court where the decision-making authority is with the arbitrator or judge. The mediator has no decision-making authority and is there to help the participants understand each other.

Maintains Relationships
Because mediation addresses the participants’ interests and seeks to achieve a win for all involved, the process is non-adversarial compared to going to court. There is a greater likelihood of participants maintaining relationships through a mediation process.

Stopping the Process
As mediation is voluntary it can be stopped by any participant at any time and it in no way affects pursuing another option for resolving the conflict.

Mediators do not give legal advice.  Even if your mediator is also a lawyer, each of you should have your own lawyer.  The mediator will work to find agreement on issues, but you need your own lawyer to make sure that:

• you know what your rights are
• your rights are protected, and
• the law has been followed. 

If the mediation is successful, either the mediator or your lawyer will write a draft agreement.  If the mediator writes the draft, be sure to have your own lawyer review it before you sign.  Once signed, it is a binding contract.  This means the agreement can't be changed except under certain circumstances.

No. A lawyer who has been retained to represent you cannot take on the role of a mediator. This is a conflict of interest. The lawyer is not able to be both neutral and your advocate in a mediation.

Before you hire a particular mediator, you will want to ask about their qualifications, training, experience and fees.  Be sure to discuss with the mediator their personal mediating style to see if it meets your needs.  Remember to check if your medical plan covers mediation costs.

You can find a trained mediator through:

• Family Mediation Canada at www.fmc.ca or 1-877-269-2970
• ADR (Alternative Dispute Resolution) Atlantic
• Your lawyer may also be able to suggest a mediator.
• The Family Court or Supreme Court (Family Division) in your area may also be able to refer you to a mediator.  Go to nsfamilylaw.ca or contact your local court (courts.ns.ca) for more information.
• You will also find further information about family mediation, and other ways of resolving a family law issue without court, here at https://www.nsfamilylaw.ca/family-dispute-resolution
• or contact us to request a mediator referral, and we will try to help. 

Collaborative family law uses a teamwork approach to resolving family law disputes.  The aim is to avoid court.  Each participant has their own lawyer, but everyone signs an agreement at the outset to show their commitment to the process and the goal of working out an agreement. The participants agree that as long as they are working together in the collaborative process they will not go to court.  The process requires open communication and cooperation, and is private and confidential.  The negotiation process involves four way meetings that both participants and their respective lawyers attend.  The meetings should be respectful, balanced and fair.  Relevant financial and other information are shared, as well as costs of any experts that might be agreed on and hired.  The goal is to reach an agreement or a consent court order.

If either participant decides to go to court that ends the collaborative process.   At that point each participant will have to hire a new lawyer or represent themselves during the court process.

Courts are adversarial, which means that your lawyer will argue for your interests and the other party's lawyer will argue for that person's interests.  In court decisions, there are sometimes ‘winners’ and ‘losers.’  Unfortunately, this system doesn’t encourage compromise and your direct input is very limited.  For people who wish to develop their own agreement and avoid the court process, mediation or collaborative family law are good alternatives.  Reaching an agreement out of court is also often less expensive, both financially and emotionally. 

Non-court alternatives are generally not appropriate where there is a history of family violence or a power imbalance.

• www.nsfamilylaw.ca- family law information on many topics, including divorce, separation, parenting arrangements, spousal support and child support
• Contact the Legal Information Society of Nova Scotia to connect with a legal information counsellor and get free legal information
• Contact Nova Scotia Legal Aid for family law legal information and legal advice
• Contact a lawyer in private practice (lawyer you would pay) who does family law
• Free and low-cost legal help in Nova Scotia.
• The Department of Justice Canada has more information about family law, including fact sheets on:
  • Parenting Arrangements
  • Divorce and Family Violence
  • Child's Views and Preferences
  • Moving after separation or divorce
  • Duties for parents and others
  • Family Dispute Resolution