Definition of Mediation
Mediation is a dispute resolution process by which two or more parties volunarily attempt, with the assistance of an impartial, neutral, trained person, to negotiate and formulate their own consensual resolution of matters at issue between them.
The mediator manages the process but has no independent decision-making power respecting the substantive outcome of the negotiation.
Definition of Collaborative Law
Collaborative Law is a relatively new dispute resolution model in which both parties to the dispute retain separate, specially trained lawyers whose only job is to help them settle the dispute. If the lawyers do not succeed in helping the clients resolve the problem, the lawyers must step down and cannot represent either client against the other again. All participants agree to work together respectfully, honestly and in good faith to try to find “win-win” solutions for both parties. If a party decides to opt out and go to court, the collaborative law process ends and both lawyers are disqualified from any further involvement in the case.
Collaborative law is primarily used in the family law area in BC. Other jurisdictions are experimenting with its use in estate law and civil litigation.
Status of Mediation in BC
In November 2007, the Nanaimo Supreme Court registry launched a pilot project allowing any party to a family law proceeding to apply for mediation by delivering a Notice to Mediate. The Notice to Mediate (Family) Pilot Project expanded to Victoria and Duncan Supreme Court Registries in April, 2008.
In BC, Provincial Family Court litigants must meet with a Family Justice Worker and attempt mediation prior to setting a hearing unless a matter is urgent. In Supreme Court, Judicial Case Conferences are a mandatory form of mediation prior to setting an application, other than a few limited exceptions.
The BC Attorney General has a Dispute Resolution office which supports a Family Mediation Practicum Project (of which I am a graduate). The BC Attorney General’s office is reviewing the Family Relations Act and a recommendation of a required “consensual dispute resolution” (CDR) session prior to being permitted to commence the court process.
As of November 2007, all cases filed at the Robson Square (Vancouver) Registry between $5000 and $25,000 (except for debts) and all personal injury claims will be referred for a two hour mediation session at no cost to the parties.
Lawyers are also using mediators to resolve disputes. The Law Society has a Fee Mediation Program for fee disputes between clients and lawyers, and the Canadian Bar Association offers mediation services for lawyers who are experiencing issues professionally and personally with other lawyers.
