Battling it out in court is not the only way to resolve your dispute. Parties can often reach an agreement through mediation, with the right mediator.
Mediation is assisted negotiation, or “managed negotiation.” It is useful when parties want an agreement but are unable to reach it without outside help.
The mediator’s role is to facilitate the negotiation towards a mutually beneficial resolution, or facilitating the “win-win scenario.”
A mediator is not an advocate for either party, as they have no stake in the outcome.
Guide the process: Through agenda planning, framing the issues, providing stages for the mediation and drafting the agreement.
Defusing emotions: Through showing empathy, active listening, calling breaks and (maybe) using humour.
Enhancing communication: Through a structure ensuring understanding, including providing equal time for the parties to speak and express their views.
Assisting information exchange: Through clarifying, defining terms, asking difficult questions, obtaining information from third parties if possible, encouraging shared expertise and making general suggestions.
Reality checking: Through looking at hypothetical scenarios, including estimating what a party’s best result looks like if mediation fails.
Most parties come to a mediation wanting an agreement solely in their favour. I try to get away from this positional thinking to create an agreement rooted in a party’s interests.
My job is to help the parties focus on a settlement meeting as many of their mutual and complementary interests as possible, without resorting to bottom lines. I believe such agreements are more likely to stand the test of time because they align with a party’s interest as much as possible.
A mediator can provide an opinion of the likely outcome in court should mediation fail but such opinions must be treated as the crystal ball gazing they are. No one knows what a judge will do and never will until they go through a trial process with its accordant risks and costs.
Here’s an overview of the process I use when I do a mediation.
I meet with the parties to gather information. Each meeting usually takes about an hour. Parties will be asked to provide their ID, so they can be identified and a conflict check can be run. Parties will also be asked to fill out an information sheet, which you can view here.
My preference is to meet with all participants at the same time. If that is difficult, then I usually schedule separate appointments on the same day, or through a video conference software, such as Zoom.
I will then have both parties sign a retainer agreement if they wish to proceed with mediation. My current agreement can be viewed here. I will then have the parties deposit the amount in trust necessary to pay for the mediation, which is described below. I then set the mediation date.
Parties can meet in one room, or separate rooms, as they prefer. The latter is a “shuttle” mediation, where the mediator goes back and forth between the two rooms. I may accommodate this by having the parties attend my office physically or conduct the mediation through videoconferencing.
Parties will be asked to provide full, fair and frank financial disclosure to me at least two days before the mediation date. Here is a non-exhaustive list of what I am looking for:
Mediation Briefs (optional);
Any sworn Financial Statements;
Your T1 General tax returns and Notices of Assessment for the past three years;
Your most recent statement of earnings [pay stub] from your employer;
Your most recent B.C. Property Assessment for all homes you own;
All court documents, especially court orders, separation agreements and other pleadings; and
If you own a company, all corporate T2 income tax returns, balance sheets, and statements of income for the past three years.
I prefer parties to email me the above documents as PDFs.
Time estimate: 3 hours.
I will usually give an overview of the mediation process at its start, including the ground rules for how the parties will speak to each other, if appropriate.
I then determine the issues. My primary goals are to collect any missing information, allow the parties to tell their story if necessary and determine what the common ground is.
I usually determine who goes first by who made the last offer. I have also been known to determine who goes first through a coin toss.
I then begin exploring interests. My goal is to get behind the issues to what the party needs. I can then maximize potential for agreement satisfaction, as it will (hopefully) address those needs.
The point is to begin transitioning to problem-solving. Sometimes I state the interests and then invite the parties to begin crafting options meeting those interests. There may also be some reality checking and hypothetical exploration.
Time estimate: 9 hours.
I want the parties to have a signed separation agreement they can then file. I will thus usually have a laptop with me to begin drafting separation agreement clauses once it is appropriate to do so.
Parties are invited to sign the agreement when they are comfortable doing so. It is generally a good idea to obtain independent legal advice from a lawyer before signing an agreement.
Time estimate: 3 hours.
Only support payments paid and received will be included in the hourly rate calculation.
I offer mediation services on a sliding scale fee. I determine the rate by calculating what cash flow is available to the parties.
If you are the party receiving support: Then your cash flow would be calculated by the total income declared on your previous year’s tax return (Line 150), plus the child support and spousal support you receive multiplied by 12 months.
For example, if X earned $15,000 last year and receives $1,000 per month in child support ($12,000 per year) and $500 per month in spousal support ($6,000 per year), then I would calculate X’s cash flow as $33,000 per year.
Only support payments received will be included in the calculation. Many orders, for instance, specify a certain amount of support to be paid but it is not paid.
If you are the party paying support: Then your cash flow would be calculated by the total income declared on your previous year’s tax return (Line 150) less the child support and spousal support you pay multiplied by 12 months.
For example, if Y earned $80,000 last year and pays $1,400 per month in child support ($16,800 per year) and $1,200 per month in spousal support ($14,400 per year), then I would calculate Y’s cash flow as $48,800 per year.
Only support payments paid will be included in the calculation.
I then determine the rate using the following scale, once I know what the cash flow situation is:
Tier 1: Cash flow = Less than $22,000; Rate $100; 10-Hour Retainer = $1,000;
Tier 2: Cash flow = Between $22,000 and $27,500; Rate $125; 10-Hour Retainer = $1,250;
Tier 3: Cash flow = Between $27,500 and $33,000; Rate $150; 10-Hour Retainer = $1,500;
Tier 4: Cash flow = Between $33,000 and $38,500; Rate $175; 10-Hour Retainer = $1,750;
Tier 5: Cash flow = Between $38,500 and $44,000; Rate $200; 10-Hour Retainer = $2,000;
Tier 6: Cash flow = Between $44,000 and $49,500; Rate $225; 10-Hour Retainer = $2,250;
Tier 7: Cash flow = Between $49,500 and $60,500; Rate $250; 10-Hour Retainer = $2,500;
Tier 8: Cash flow = Between $60,500 and $66,000; Rate $275; 10-Hour Retainer = $2,750;
Tier 9: Cash flow = Between $66,000 and $70,500; Rate $300; 10-Hour Retainer = $3,000; and
Tier 10: Cash flow = Over $70,500; Rate $325; 10-Hour Retainer = $3,250.
I then select the rates of the two cash flow amounts listed above and average them. In the above scenario, for instance, X would be in Tier 4 ($33,000) and Y would be in Tier 6 ($48,800) per year. The rates are $175 per hour and $225 per hour. The median is $200 per hour.
I then advise the parties what rate I will charge and what 10-hour retainer will be needed before the mediation can proceed. It would be $2,000 in the above scenario.