Mediate or Litigate

Many clients face a dilemma – do they engage with their spouse in front of a neutral third party to try to work things through – or, do they retain a lawyer to commence proceedings in order to safeguard their legal position? Clients wonder – will I be perceived as weak if I suggest mediation to my spouse?

The idea of the pit bull lawyer mauling the other side to pieces is not far from our memory. The practise of “He said / She said” Affidavits, slinging mud at the other side, are far from long gone.

Yet, there is a reason why more British Columbians are resorting to mediation in resolving their family disputes. There is a reason the new Family Law Act encourages mediation and alternate dispute resolutions, and that reason is simple: lawyers and judges do not know your family as well as you do. Only you can create, with the assistance of a mediator, an agreement that makes sense for your family.  

We are moving away from the view that only the tough lawyer approach will ultimately serve you best, but mediation may not be appropriate in all circumstances. If there has been a history of violence or of serious power imbalances, either physical, emotional, or financial, mediation may not be appropriate. If you fall into this category, a lawyer may be required in order to assert your legal rights and preserve your legal position.

There are situations where the parties’ relationship has deteriorated to the point where engaging in on-going negotiating, even with a mediator, is simply impracticable.

Mediation is voluntary and it takes two willing and cooperative people in order for the process work.

Almost all other times, mediation ought to be looked at as a viable option.

An experienced mediator should be able to sit the two parties down and identify the numerous issues to be resolved. Through respectful communication and by giving each party the opportunity to be heard, resolution, in time, should follow. It is crucial to keep your eye on the target – that being an expeditious, less costly, interest – based and child- centered agreement.

Lisa Sirlin, Mediator at Deer Lake Law Group encourages those going through the process of separation or divorce to contact her so that she can work together with both spouses to create a working interim plan and a long-term solution for your unique family situatio