Mediation is a process whereby two people who have issues to resolve sit down and work with a trained objective professional and engage in discussion and exchange ideas in an attempt to resolve their dispute in a creative non-adversarial manner by agreement.
There are many advantages to mediation. It allows parties to a dispute to discuss various ways in which their dispute can be resolved so that, hopefully, that dispute can be resolved in the best way possible for both of them. If successful, it allows parties to a dispute to resolve their dispute by agreement rather than via the often destructive gladiatorial combat of litigation. Parties who resolve a dispute together by agreement are often more able to work together amicably in the future than parties who must suffer the lingering acrimony that often remains at the conclusion of a court case. Clearly if the parties are, for example, parents of young children who must come up with a way to continue to raise their children together even if they are no longer together, resolution by agreement is better for them. As recent research shows that children are harmed by conflict between their parents, it is also better for their children.
In addition, mediation allows the parties to craft their own solution to their own problem in a creative manner, whereas if the parties must resort to litigation they are handing their problem over to a stranger, a Judge, to resolve. Normally the only exposure that a Judge has to the parties is during the brief time that he or she sees them in his or her courtroom. The Judge does not know the parties, and if children are not involved he or she does not know their children. He or she must resolve the parties’ dispute on the basis of often conflicting evidence that is presented, sometimes in an incomplete and haphazard manner, in the contentious, often heated, atmosphere of a trial. It goes without saying that it is usually much better for the parties to resolve their dispute themselves in the manner that they decide is best. As a Family Court Judge has reputedly recently said, “I don’t know your kids. I don’t love your kids. And you are asking me to make important decisions about their lives. That’s YOUR job”.
Mediation may not be for everyone. In cases where there has been extreme domestic violence, or an extreme power imbalance exists, mediation may not work and litigation may be necessary. However mediation may sometimes work even in cases which do not seem, at first glance, to be suitable for it. It is possible to mediate with parties in separate rooms, for example, or by telephone or by conference call or via Skype, or even by seeing the parties individually on different days.
It is always best, therefore, to look into the possibility of mediating your dispute before resorting to court action. At Kitsilano Family Law, we encourage parties to attempt to resolve their disputes by mediation if at all possible, and we have the knowledge and the experience to use the mediative process effectively.
William (Bill) Storey is a trained, experienced and committed mediator with many years of family law experience whose approach has always been to use all available tools to resolve family law disputes by agreement whenever possible.