Debunking Top 6 Mediation Myths
Mediation is an excellent tool for resolving conflicts, yet not many people actually know what it is or they have certain assumptions about it. I'm going to share with you the top 6 myths I hear when people are asking about mediation, and explain why they are not accurate.
1. Suggesting mediation is a sign of weakness.
Often when in conflict people are viewing it as a win/lose situation. So, they seem to believe that an offer to mediate means there is uncertainty in their case and that mediation requires one party to compromise on their position. Family law professionals who regularly work with mediation know that this is not the case. The purpose of mediation is to facilitate constructive conversation, gain understanding, and foster creative solutions to the problems. This requires a considerable amount of effort on the parties as they are now the decision makers, where in court the Judge will be making the decisions. Mediation is certainly not the easy way out or a sign of weakness. If anything, a suggestion of mediation should be viewed as an honest attempt to make the most out of the conflict at hand.
2. Mediation is a waste of time because this will never settle.
When faced with a conflict for any amount of time it can be difficult to see the light at the end of the tunnel. Particularly when dealing with family conflicts where histories run deep, emotions are strong, and everyone knows what buttons to push to irritate the other. In these situations it is hard to see any possible positive outcome. So, too often people refuse mediation because they just know it won't settle. In reality, most mediations result in an agreement that both parties are happy with. People who are in conflict and stuck without any obvious options are the perfect candidates for mediation. Mediation is designed to get effective communication going and to offer creative solutions to the problems.
3. I won't have my rights represented if we mediate.
It is true that a mediator is a neutral third party who will not advance the interests of either party over the other. However, mediators spend a considerable amount of time explaining the guidelines and laws appropriate to the issues at hand so the parties can make informed decisions for themselves. Also, lawyers are welcome to join the mediation process if the parties deem that necessary.
No agreements are signed in the mediation room. Mediators will encourage the parties to take their decisions made in mediation to their lawyer for independent legal advice. This is an excellent step to take during the mediation process to take some space, get independent legal advice, and consider the decisions thoroughly before finalizing anything.
4. If the issues are complex, mediation is not an option.
It is no secret that the courts are overbooked and overworked. This can lead to some cases being rushed and some issues not being given the time needed to find the best solution or it can lead to complex cases taking up too much court time and overloading the system more.
Mediation is a great place to work out complex issues. The process belongs to the parties, so if the mediation needs to be put on pause to do some research or gather more information that is always an option. Rushing through to solutions is not what complex issues need, mediation has the ability to give the appropriate time and attention to all issues at hand.
5. People who mediate don't use lawyers, therefore their settlements are unfair.
There are plenty of cases using lawyers that have ended with an unfair settlement. The use of a lawyer does not guarantee fairness. However, in order to guarantee the opportunity of the interests of each party being heard, lawyers are always welcome at the mediation table.
Mediation also offers the flexibility to consider the decisions before finalizing the agreement, making sure each party thinks the process and agreement is fair.
6. Litigation costs less than mediation.
While it is true that in British Columbia court does not cost anything and Duty Counsel is usually available for free legal advice on the day of court. However, with the courts overbooked I have seen it far too many times that people take the day off of work for their court day, sit around waiting to be called, only to have their file rescheduled to another day when time ran out. They don't see a bill from the court house, but people certainly pay in other ways. Factor in lawyer fees and the cost increases dramatically.
Mediation is faster and cheaper in nearly all cases.