In This report discusses why this method
In Canada, facilitative mediation is recently becoming very popular in family law. It was the very first style of mediation and was introduced in the 1960s and 1970s. Facilitative mediation is an alternative form of settling disputes between two parties with the help of a third party, the mediator. This report discusses why this method is a great tool for families when the circumstances are appropriate and in which situations it’s not the best tool for resolution.
This report will also explain the process, who will be involved and why this method is a significant choice. It will also touch on the concerns of this method and recommend ways to avoid problems. Lastly, the report will explain the possible consequences society would face if legal system and government did not promote the use of this method.
The issues surrounding this report are why mediation is a great tool for dispute resolution given the appropriate circumstances and why it is an inappropriate tool to us in certain circumstances. Generally, there are three or four stages of an effective mediation process. According to The Everyday Guide to Canadian Family Law, “The stages include identifying the issues, developing options and choices, making choices, developing the agreement and recording it after receiving legal advice on its fairness.” (Cochrane, 2017, p. 2) However, the process can be different for each individual and case. Facilitative mediation is not governed by strict rules of procedure, so it can be tailored to fit different circumstances. Mediation is fairly faster than litigation as there won’t be any court dates to wait for.
It is also less expensive than going to court; most mediators usually charge $50-$150 per hour. The mediator is directly involved by acting as the neutral third party that helps guide the negotiation towards an agreement. They will help create a memorandum of understanding which is a contract that lays down all the details and conditions of the final agreement. It can be legally binding if signed by all parties. Mediators cannot impose any decisions themselves like a judge would; they are simply there to help the parties communicate effectively. Since there’s no obligation for mediators to have any special educational background, people have to be extra cautious when selecting one. It’s essential to ensure that they are experienced and qualified professionals.
The best mediators tend to be lawyers, social workers, and psychologists. Zena Zumeta, president of the Mediation Training & Consultation Institute wrote in an article, “The mediator asks questions; validates and normalizes parties’ points of view; searches for interests underneath the positions taken by parties; and assists the parties in finding and analyzing options for resolution.” (Zumeta, 2017, p.3)It is also equally important for each party to directly involve their own lawyer in the process to some extent. Mediators will not be able to provide any type of legal advice even if they are lawyers.
However, the personal lawyer will be able to help the disputing parties understand their rights and obligations under the federal and provincial law. They will also help them understand the real benefits of the final settlement from a legal perspective and will thoroughly analyze it for their protection. Their roles require meeting the obligation of informing their clients about the option of medication in the first place. This obligation is imposed by the Divorce Act.
They will help select a qualified mediator and explain the advantages and disadvantages of the method. Lawyers have to ensure that clients who are weak negotiators are not stuck at a disadvantage. The lawyer is responsible for staying in close contact with the disputing parties and the mediator once the process starts in order to keep track of how everything is going. However, at the end of the day, a lawyer’s purpose isn’t to undermine the work of the mediator; they will have to respect the agreement that was achieved. The spouses disputing are directly affected by the process and results of facilitative mediation.
They play the most important role in setting up the mediation sessions to benefit and suit their case. Although mediation is great, it is not suited for everyone. This process works best when each spouse is able to negotiate at the same level.
If one spouse is clearly in a stronger position, than this process may not work out effectively. Each person must be willing to participate and in good faith as well. When it comes to setting up for the medication sessions, the parties must either determine if legal aid will cover the mediation or if they want to use a public facility. The two parties negotiating are mainly in charge of hiring the mediator and their independent lawyers. They will have to ensure that both of them are comfortable with the mediator and are happy with their skills and qualifications.
Both parties have to decide on whether to keep the mediation open or closed. Open mediation allows everything that is said at the mediating sessions to be used at court if one party decides to take further legal action. Whereas a closed mediation means that everything will be private and confidential. Lastly, the disputing parties will have to sort out scheduling for the mediation, determine the hourly rate and sort out the billing arrangements.The Spouses, Mediator and the Lawyers are directly involved and affected by the facilitative mediation process. The children of the family are indirectly involved especially in cases that have to do with child custody and or separation/divorce because the decisions being made will affect their well-being and the rest of their lives.
According to the United Nations Convention on the Rights of the Child, children have a legal right to be heard and listened to. A research report that was written in 2009 called The Voice of the Child in Separation/Divorce Mediation and Other Alternative Dispute Resolution Processes: A Literature Review stated that “children’s rights theorists see children not as property, but as persons who can and should be participants in the decision-making processes that affect their lives.” (Birnbaum, 2017, p. 4) Facilitative mediation benefits children because it pushes the parents to be more cooperative instead of fighting against each other to win the case. Families should use child-inclusive mediation which requires the involvement of children throughout the process.
There are two ways to accomplish this. The research report mentioned that one way is for, “The same mediator who interviews the parents to also interview the children separately, and then provides a feedback loop to the parents or brings the children into the mediation session with the parents.” (Birnbaum, 2017, p.5) The second way is to use a child specialist to interview them instead of the mediator. Facilitative mediation is a significant option to consider because it is less adversarial and non-coercive.
Mediations purpose for finding a middle ground can actually be a good thing, especially since the family members disputing will still remain as a significant part of each other’s lives. The process of mediation can always be designed to suit each issue and the individuals involved. The book , The Everyday Guide to Canadian Family Law, states that “There is no limit to the type of issue suited to mediation: Who should have custody? How should access be structured? Where will we live? How can we divide our furniture and property?” (Cochrane, 2017, p. 5) The people involved in this issue can have the opportunity to design their own solution instead of having a judge impose a solution. The advantages of mediation are that discussions are private and confidential and the agreement can be renegotiated if the situation changes. A lot of the times the facilitative mediation process does not work out as the couple disputing fail to fully understand what mediation is and whether they are suited for it. It’s important to understand what facilitative mediation is and what it isn’t. It is not marriage counselling.
It is not meant to help couples with their relationship difficulties and help them remain together or help them separate. Mediation is not therapy. It cannot help people with their emotional or psychological problems. As mentioned before, in order for this method to work both parties need to feel comfortable with negotiating with each other. The Everyday Guide to Canadian Family Law discusses when mediation is not appropriate. The book mentioned, “Women who come from homes where there has been violence are unlikely to be able to negotiate with the spouse who has beaten or harassed them.” (Cochrane, 2017, p.6) Mediation is not a good option when one spouse fears the other because of violence.
Some important characteristics of mediation are that it is voluntary, so if one spouse initially wishes to not mediate, it is not a good idea to go through with the process. Lastly, similar to how mediation is inappropriate for spouses that have faced abuse, it is equally inappropriate when child abuse is present. In all provinces, it is illegal for any persons learning of child abuse to not report it to authorities. In cases where child abuse is present, the mediation process will not remain confidential as the mediator will have to report it so that steps can be taken to protect the child from harm. People that use facilitative mediation should ensure that both parties want to mediate, that they can negotiate at the same level and that no abuse is present. The two parties disputing need to understand that the purpose is to sort things out for the future and not fight about the past. After establishing an idea of what mediation is and what it’s not, the parties need to understand who benefits most from this process so they can determine if it will suit their issue.
The people that benefit most from mediation are listed in The Everyday Guide to Canadian Family Law as “People who are separated and involved in legal proceeding, or may become involved, people who are thinking about separating, people who are living common-law or thinking about it, people who are thinking about getting married and lastly, people who want marriage contracts.” (Cochrane, 2017, p.6) Mediation can also help people sort out more serious issues like child custody and the division of property after separation. However, parties must be extremely cooperative and have the same goal of joint planning for the future of their family. If the Canadian government and legal system had not encouraged the use of mediation, a lot of families might not have known about the process. This would have led to more families battling it out in court. The Everyday Guide to Canadian Family Law argues that “In the courtroom, lawyers promote one solution for the entire case and then battle to have their vision prevail.
” (Cochrane, 2017, p. 7) It is unfair that after a divorce only the winning party gets to leave with an agreement that satisfies them. The children might even become emotionally affected by the constant battles between their parents.
Whereas, mediation will leave them feeling like their parents are still partners when it comes to raising them. Along with the emotional strain, more families would have to spend so much more time and money for litigation and not all people can afford that. However, in Canada lawyers are obligated to encourage the use of mediation before litigation. As mentioned in the book above, “The federal Divorce Act was amended in 1986 to place a positive duty upon lawyers to advice clients of the availability of mediation services in their community.” (Cochrane, 2017, p.
7) Families facing family law problems should definitely look into facilitative mediation first. Canada is privileged to have a legal system that encourages the use of an easier and more cooperative way for families to sort out their problems. This alternative dispute resolution method has been helping a growing number of families across Canada for the past decade and progress will continue into future generations. References
