What Style of Family Law Mediation Do I Need?
Each family law case involves different dynamics. These can include the personality of the spouses, the personalities of children or even extended family. The dynamics of the family and its breakdown are the most important factors in deciding what style of family law mediation or mediator you need to choose to best resolve your case. For example, some people want to know if their position is reasonable, others want to address the long term interests of their children through mediation, and some just want to heal. Depending on the dynamics and the status of the case, it is very important to pick the right type of mediation and mediator for your family law issues.
Let’s first briefly look at Mediation and what skills the Mediator needs to have:
Family Law Mediation
Family law mediation is a consensus based dispute resolution process, where a neutral mediator facilitates parties coming to an agreement.
To find out more about the process of mediation, what it takes, involves and what the steps and costs are, click here.
Qualifications of Family Law Mediators
In British Columbia, family law mediators must be accredited by the Law Society which means having to:
- Complete 80 hours of mediation skills training; and
- 14 hours in family violence training.
Family law mediators must have some subject matter expertise, but not all accredited mediators are lawyers; some family law mediators are accountants, counsellors, or other professionals. There are many accredited family law mediators in BC with different styles and backgrounds. Our recommended mediators are found here.
There are different theories of mediation, which can be use in different scenarios depending on the participants and goals of the mediation. Generally speaking, family law mediators in BC are trained in interest-based mediation (explained below), mainly through the Continuing Legal Education of BC mediation skills training courses.
What Styles of Family Law Mediation Are Out There?
The main styles or types of family law mediation are as follows:
- Interest based mediation
- Evaluative mediation
- Position based mediation
- Transformative mediation
- Therapeutic mediation
Let’s look at what each of the above means:
Interest based mediation
As its name suggests, interest based mediation focuses on the interest of the parties, rather than the positions of the parties or each party’s desired outcome. By identifying and focusing on the underlying interests of each party, the mediator can explore the overlapping interests and help the parties come to an agreement that satisfies all parties’ needs. Interest based mediation doesn’t see the conflict as a zero-sum game, but rather that there are possible resolutions that can satisfy all parties needs.
Interest based mediation is in some ways the “neutral” or “pure” approach to mediation, and the mediator does not necessarily have subject matter expertise and is not called upon to provide opinions or solutions.
Darren Hotte is a great example of a “pure” interest based mediator, as he is a non-lawyer and does not have subject matter expertise, other than being an expert in mediation (Darren’s background is as a pastor, and the idea that he does not have subject matter expertise overlooks the role and religion has played in conflict resolution, which is beyond the scope of the blog).
Darren is another one of the coaches CLEBC mediation skills training program, and it truly an expert when it comes to exploring and identifying interests. Darren is an excellent choice when it comes to resolving parenting conflicts or issues related to children or relatives.
Arlene Henry, Q.C. is another example of an interest-based mediator. Arlene is one of the instructors of the CLEBC mediations skills training program. Arlene is not a litigator but practices as a mediator, arbitrator, parenting coordinator, and views of the child author. Arlene is a brilliant lawyer and can easily understand and explain any aspect of family law when necessary.
Evaluative mediation the most popular type of family law mediation and takes a similar approach as interest-based mediation. However, the mediator will have subject matter expertise, and will offer opinion on likely outcomes if the matter is not resolved at mediation and proceeds to trial.
Evaluative mediation is exceptionally useful if you are about to go to trial and need an impartial, authoritative personality to tell you if you are going to win or lose, or what your risks are.
Often, these types of family law mediations are set on the eve of trial as a last ditch attempt for the parties to come to an agreement. In those cases, lawyers representing the parties are looking for a “pushy” mediator who will give the clients a reality check about what the likely outcome at trial will be. Almost all mediators with a background in family law litigation will be evaluative to some degree during their mediation.
Carol Hickman, Q.C., the other instructor of the CLEBC mediation skills training program, can conduct purely interest based mediation, but can also very evaluative when necessary. Carol in an expert in family law as both a litigator and mediator. Carol is extremely effective in moving clients towards settlement on the eve of trial when counsel is involved. When parties are unrepresented, Carol generally conducts purely interest-based mediation. Also, when Carol is acting as a mediator-arbitrator, she also tends to be more purely interest based, so that she can maintain impartiality if the mediation is not successful and moves to the arbitration phase.
Diane Bell ,Q.C., is know among family lawyers as a mediator that is effective pushing parties towards settlement using an evaluative style of mediation. Diane has stated that one of the reasons she does not conduct mediation-arbitrations is that she is too evaluative in her approach to mediation.
Leena Yousefi, founder of YLaw, is known of using a hybrid approach with interest based, evaluative and position based mediation depending on the dynamics of the case. Having a vast background in pure family law litigation, she is familiar with likely outcomes of each position and case and can seamlessly guide the parties through resolution by assessing risk and discounting positions based on risk. She uses a data-based, quantitative approach to mediation cases that generally convinces parties of the settlements they agree to, and they generally do not walk away with regrets because of the data that they are presented with.
Position based mediation
Position based mediation focuses purely on outcome without trying to identify and address overlapping interests, and often the parties do not want to disclose their interest to the other side. Position based mediation is often conducted by way of shuttle mediation, where the parties are in separate rooms, and the mediator brings offers between rooms. Position based meditation is common in labour negotiations or purely commercial disputes but is generally not appropriate for family law mediation. That being said, often family law mediations will start in a joint session with an interest-based approach, and then move into separate rooms for a more evaluative approach, and then finally towards shuttle mediation where offers are being exchanged in a more positional situation.
Transformative mediation focuses on bringing everyone’s interest along the same lines. It is based on the idea that the process of consensus-based conflict resolution can create positive change in the broader community, regardless of the outcome of the mediation. Exploring the parties’ interest and the journey towards conflict resolution creates positive change in the parties as well as the boarder community.
An example of transformative mediation which is often used in the criminal law context is restorative justice. The restorative justice process brings the complainant, accused and often members of the community to focus on healing the harm caused by the transgression, recognizing that the complainant, the accused and the community who have all suffered and need to be healed. Restorative justice programs are rooted in indigenous legal traditions of conflict resolution. The Indigenous/First Nations Court in BC are examples of restorative justice and transformative mediation.
Therapeutic mediation is similar to transformative mediation in the sense that the focus is more on the healing aspect of resolving conflict rather than a focus on coming to an agreement. Therapeutic mediation is often provided by mental health professionals in situations where one or both parents have mental health or addiction issues, and there might need to be a focus on improving the parents’ ability to parent in a healthier way. The idea is that the mediation itself has a healing effect on the parties, and hopefully helps address some of the underlying trauma or other issues that are creating conflict or preventing the resolution of conflict.
Contact our award winning family law mediators and lawyers for all your family law needs by getting in touch or calling 604-974-9529.