Our popular guest blogger, Kari Boyle, Executive Director of Mediate BC Society, joins us again today with another thoughtful piece. This time she explores the interesting question of when to recommend mediation to family clients:
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I just read a very interesting post from Georgialee Lang about family arbitration under B.C.’s new Family Law Act: “Why is Family Law Arbitration the Future for Divorcing Spouses?”
Georgialee Lang is a highly respected and experienced family litigator. I was pleasantly surprised to see the extent to which she sees mediation as the first option for most families and that arbitration is the second option for those cases where mediation is either not appropriate or is not successful in reaching a resolution.
It was this statement that gave me pause:
Family law mediation has played an important role in alleviating the worst parts of the family courts, but mediation, which requires two reasonable people willing to compromise on the issues between them, is not for everyone.
Does mediation really require “two reasonable people willing to compromise…”? Is that the test for whether mediation is appropriate or could be helpful? My guess is that many spouses in the midst of a controversial marriage breakdown would say:
- I am reasonable but my spouse is not;
- I’m not willing to compromise on “X”; and
- My spouse would never agree to “Y”.
Applying Georgialee’s test to this situation, a family lawyer would be apt to advise their client to bypass mediation and consider other options (arbitration or court).
Expecting spouses in this situation to be “reasonable” is arguably unrealistic and unnecessary. Family mediators tell me that if you get those two spouses engaged with an experienced mediator they may discover that they were mistaken about the reasonableness (or intentions or interests) of the other party AND that there is indeed room for compromise. If this is true, then rejecting mediation as an option too quickly would result in a lost opportunity for a consensual resolution.
So what is the better test? In addition to screening (which is necessary for other reasons) I suppose that there must be some level of trust between the parties and, after considering information about mediation, a willingness to give the process a try. The power of the mediation process cannot be underestimated.
In the end, I hope that those advising families under the new Family Law Act will take this broader view of whether mediation might assist their clients.