Family Mediation: One Lawyer Tells How She Does It

Distance Family Mediation by Susanna Jani

A lot has been written about the advantages of family mediation, including the privacy and cost-effectiveness of the process and how the mediator helps people resolve their differences. But, how does family mediation actually work in real life? Does the mediator act like a negotiator to help you get what you want from your (ex) spouse? Does the mediator help you get a divorce? How long does the whole thing take? What does it cost?

If you’ve ever wondered how all the nuts and bolts (or, in this case, nails and planks) of family mediation fit together in practice, today’s posting is for you. Here, in her trademark straightforward style, Distance Family Mediation team member, Jane Henderson Q.C., gives the low-down on how she personally conducts family mediation:

As a lawyer who has practiced Family Law for over 30 years, I know that the end of a relationship is very difficult for all concerned, even for the client who wants out. Not only is it likely to be emotionally devastating but, for most people who use the Court Process (i.e., Litigation) to resolve the issues that arise – such as parenting, division of property and support – it is also extremely expensive and it may take a very long time to achieve resolution. The Mediation Process does not eliminate the pain of relationship breakdown, but it does go a long way to ensuring that more pain is not created through the resolution process.

Here, step by step, is how the family Mediation Process works in my practice:

The Mediation Process may start at any time. Some clients will attend Mediation before they have even seen a lawyer. For others, Mediation happens on the eve of trial, with their lawyers, as a last effort to resolve the issues. Sometimes we start the Mediation process and then it is adjourned to enable clients to get more information, or perhaps counselling …. sometimes the clients just need time to think things over… The point is that the clients control the timing, not lawyers, or the Court, or the Mediator for that matter.

In a typical Mediation I will meet with each client separately prior to our first joint meeting. This enables the clients to get to know me and to ask any questions they may have, and it enables me to get to know them and to get an idea of their joint and separate issues and interests. It also helps me to determine if there are any safety issues, if either client is feeling bullied or abused by the other, and to confirm that both clients are entering the Process willingly.

This first meeting also enables me to determine if we have all the information we need in order to reach a resolution and, if not, how to get it. That ensures that we are not wasting our time when we meet. Even though Mediation is cheaper than the alternatives, I am well aware that it is still a big expense for families so we must use our time as productively as possible.

My fees as a Mediator are charged on an hourly rate, plus tax and disbursements, for all the time I spend on the file. Each client brings his/her share of a retainer (unless one client is paying all or more of the cost) to the first separate meeting, to be applied to the costs of the Mediation, including those first separate meetings. If the Mediation doesn’t proceed for some reason the funds are returned, less the costs of the first meetings. If the clients are represented by lawyers who agree to pay my account from their retainer then I do not require a further retainer.

It is very difficult to predict the cost of the Mediation Process and a Divorce. Most lawyers will be able to give you an estimate for an Uncontested Divorce, meaning that issues of parenting, property and support are all agreed to prior to applying for the Divorce. In my experience, it is usually in the neighbourhood of $1,000 to $2,500, which may be paid by one party or split between them. The cost of the Mediation depends on how long it takes – and this depends entirely on the number of issues and the amount of difficulty the clients have in reaching agreements. Usually clients will have the cost of their own lawyers and half the mediation costs.

It may help to think of the Family Law Process as similar to a home reno. You are “renovating” your family structure, and the cost of this will depend on how much work is needed, whether there are any surprises hidden in the “walls, and if you can readily get the materials you need for success.

A successful Mediation will mean a cheaper reno. By the time I have met with the clients I often get a sense of whether the Mediation will require one or two sessions or more, so a rough time estimate – and therefore a rough fee estimate – may be possible. Of course, if the Mediation is unsuccessful the clients are required to pay the Mediation fees anyway, and then they are back on the litigation track. Even though most of these cases do still settle before an actual trial, you could think of the estimate of ongoing legal costs like the estimate you got for your house reno: double the time and double the cost.

My assistant makes the first contact by phone to each client to set up the dates of individual meetings and, usually, the first mediation session. She then sends the clients a letter confirming those dates and times, together with a copy of the Agreement to Mediate which will be signed by all clients at the beginning of the first joint session.

Depending on the number of issues and their complexity, a Mediation may take as little as 2 hours or it may take several days. If lawyers are already involved they may provide briefs which set out what has happened so far, what has been agreed on and what still needs to be resolved. Although the preparation of briefs is an added expense for the clients, a brief may save a considerable amount of time, and therefore money.

During the Mediation, I meet with the clients (and their lawyers if present) together, but we may also meet separately when that is likely to be more productive. If necessary we may involve accountants, child experts, or any other resource that may help the clients come to the resolution which works best for them and their family.

Mediation is very much a child-centered process. As Mediator, if the children are of an appropriate age, I may be asked to speak to the children about what is going on and how it is impacting them. Sometimes it is more appropriate for that conversation to be with a child specialist rather than the Mediator. In any event, for most parents the results are helpful, and for some, surprising. My objective, as Mediator, is to help the parents keep their children’s needs and best interests first and foremost throughout the process. I may refer the parents to a child specialist, or to parenting programs if available. Parenting is hard enough in an intact family, and it often becomes harder when the parents live in different homes, but there are resources available to help ensure that the best interests of the children continue to be met.

Mediation is informal but not casual. For the final settlement to be binding, full financial disclosure is as important to the Mediation process as it is to the Court process. Part of the Mediator’s job is to ensure that all meetings are carried on in a safe, civil and respectful way and that the clients have the opportunity to obtain all the information they need to make good decisions.

As the Mediator, I am a neutral party who is not going to favor one side over the other or give either client legal advice. As a lawyer with a lot of experience in family law, I may tell the clients generally what the range of legal outcomes is, and what possible outcomes are likely in Court, but I do not provide them with legal advice. I do not negotiate on either client’s behalf or attempt to promote the position of one client over the other – that is, I point out the possible consequences of given proposals, but I do not support the individual goals of either client. My role is to help and support the clients to achieve a resolution – to make their own agreement – which they can each live with and that will enable them to complete the successful “renovation” of their family. In order to do that I may help one or the other, or both, articulate his or her position; I will try to ensure that each client is heard and understood by the other; I may suggest possibilities or resolutions in addition to the ones the clients are putting forward, or point out the possible consequences of given positions – but I do not promote either client.

Often clients attend with their lawyers from the very beginning, while others do not want the expense of involving lawyers at all. But it is always my recommendation that the clients get Independent Legal Advice before they finalize any agreement. Even if their lawyers do not attend the Mediation sessions they should be consulted before the deal is finalized.

When the clients have reached a resolution, it may be recorded as a Memorandum of Understanding which the clients may then take to their lawyers for Independent Legal Advice, to eventually be finalized by way of a Separation Agreement, or Court Order if the Litigation Process has already been started.

If the clients’ lawyers have been present throughout the Mediation process, the agreement may be recorded as Minutes of Settlement which are immediately binding upon the clients although the Minutes will usually become a formal Separation Agreement or Court Order.

As a Mediator who is also a lawyer I often draft the Separation Agreement at the request of the clients’ lawyers to ensure that it is drafted in the most neutral way. If clients are not represented I may draft the agreement for them to take to lawyers for Independent Legal Advice.

Once an agreement has been reached, if one or both of the clients wants a Divorce, it will still be necessary to file the appropriate documents, called pleadings, and apply to the Court for an Order of Divorce in order to change the clients’ status from Married to Divorced. However, if the other issues – that is, parenting, division of property, spousal and child support – have been resolved by agreement then the Divorce is a much cheaper administrative process (referred to as an Uncontested Divorce) which does not require either client to appear in Court.

A recent, and exciting, development in the Mediation Process is Distance Mediation. By that we mean using different technologies to mediate for clients who, for any number of reasons, are unable to meet face to face with each other and with the Mediator. Although the same principles apply as in traditional face to face Mediation, some of the practices are necessarily modified to accommodate and take advantage of the technology we use. So, for instance, the first individual meetings will almost always be done by telephone or videoconference. The group meetings may be done by telephone conference call or by using a videoconference platform like Webex’s Meeting Centre, which allows the clients and the Mediator to be online together and visible to one another. It is not necessary for the clients to be fully conversant with the technology used prior to the Mediation because the technologies are chosen for their relative ease of use and the Mediators who are doing Distance Mediation are also becoming more and more skilled……although it is still a learning curve for all involved!

I have spent many years in the Court room on behalf of my clients but I truly believe that most people are best served by a Mediation process. With the likelihood of major changes coming in the area of Family Law in British Columbia, Mediation becomes an even more useful process for resolving disputes on relationship breakdown.

Still got questions about family mediation? Send me, Susanna, an e-mail and one of our mediation team members will gladly answer them!

                       

Susanna Jani

For a decade, Susanna Jani was Roster Administrator for the B.C. Mediator Roster Society*, managing its day-to-day operations, activities and projects, including the initial research phase of the Distance Family Mediation Project. In 2009, she followed her passion for this environmentally-friendly project and became Project Coordinator for its second, pilot… MORE >