Family legal matters are never easy – but whether you’re facing a divorce or trying to arrange a custody agreement, there are alternatives to lengthy trials or stressful court dates. Since 1937, Baker Newby has provided our community with various family law services.
One option is family mediation – a legally binding alternative to court. However, many people mistake family mediation for services like marriage or family counselling, and these terms shouldn’t be used interchangeably. While both are valuable, they’re quite different.
Family Mediation
Mediation is a negotiation between disputing parties. Both parties will have a lawyer for representation. The legal service is conducted by a mediator who acts as a neutral third party. While a family mediator is not empowered to impose a settlement, their presence alters the dynamics of the negotiation and will often influence the final settlement. The Canadian Bar Association defines mediation as:
“The intervention into a dispute or negotiation by an acceptable, impartial and neutral third party who has no decision-making power, to assist disputing parties in voluntarily reaching their own mutually acceptable settlement of issues in dispute.”
Mediation processes may vary depending on the degree to which positions have hardened, who is involved and the overall complexities of the issues. However, all successful mediations will consist of five mandatory tasks:
- Agreeing to mediate.
- Understanding the problem.
- Generating options.
- Reaching agreement.
- Implementing the agreement.
Mediation is also not to be confused with arbitration. Unlike a mediator, an arbitrator can render an enforceable decision. Both parties will agree to be bound by the decision of the impartial arbitrator, who is usually chosen by the parties. An arbitrator will receive submissions from both sides to conduct a fair hearing according to the rules of law.
As mentioned, the mediator has no power to make decisions in mediation. The dispute is settled if, and only if, all of the parties agree to the settlement. The key to successful mediation is meeting interests. A position is merely what a person has concluded is the best way of meeting those interests. Specific interests will differ by case, but many include money, child custody, the process or way in which a dispute is resolved, emotions, or feelings.
Family Counselling or Couples Therapy
By comparison, counselling or therapy goes deep when it comes to addressing the root of relationship and familial problems. The focus is primarily on why the couple or family, including children, are experiencing ongoing issues. Rather than looking at the minute details of the specific arguments themselves, the therapist will support those involved to see what they need to do differently to avoid or successfully manage conflict.
Diving into why the couple or family finds themselves in conflict often involves an exploration of their past and the way it actively impacts present relationships. The main goal of therapy is to help partners and children appreciate and empathize with each others’ needs, thoughts and feelings with the goal of preventing future conflict.
For couples, counselling may be a sort of “last chance” to save their relationship after being unable to prevent the recurring issues from continuously surfacing. More focus may be put on the present situation and how to work through issues as a unit, using skills taught in your sessions. The goal is to prevent divorce often or come to a more harmonious agreement if the family unit does break down. Think, “conscious uncoupling.”
Therapy, counselling, and mediation are important but very different services. If you are interested in pursuing family mediation to resolve your dispute, our team at Baker Newby is here to help. Our mediation service addresses many issues, including custody, parenting time, child support, property division, spousal support, debt division and asset division. Contact us today to learn more about our mediation services or to book an appointment with one of our knowledgeable family law lawyers.
