The role of mediation in divorce
The British Columbia Supreme Court and Provincial Court hear many cases related to matters of family law, but many people are unaware that such disputes can also be resolved without litigation. Mediation is often a viable alternative to litigation in a divorce situation, and the process is able to emphasize the interests of both parties.
Litigation is inherently adversarial, creating an atmosphere that suggests a zero-sum game. However, in many family law disputes, both parties may benefit more from compromise and negotiation, and the win-win appeal of mediation promotes such discussion. Moreover, since the costs of mediation are typically paid equally by the participants, it may be a more economical alternative to traditional divorce.
In cases where mediation successfully settles a dispute, a written agreement will be drafted then might be presented to the court for review. The agreement will essentially act as a contract between both parties. In the event that one party violates the terms listed in the document, the other party will have the option of either amending it or compelling the other’s compliance through the court. In addition, it is possible to resolve some facets of a dispute through mediation and others through the court process if some issues prove difficult to negotiate.
While it is not strictly necessary to retain the services of a lawyer to participate in mediation, it may be helpful to do so in some cases, particularly if the issues being discussed are somewhat complicated. Moreover, a lawyer may review the terms of an agreement that has been reached before it is signed and offered to the courts. Since the mediated agreement will likely be treated as a binding contract, it is important to try to ensure that its terms are not wholly disadvantageous to the signing parties.
Source: Ministry of Justice, “Family Mediation“.
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