Mediation in Alberta: 18 Things You Can’t Get in Court
Mediation can be a path to solving issues related to family law without having to lug the matter into court.
Mediation is a form of alternative dispute resolution (ADR) that allows the involved parties – often with their respective Alberta family lawyers – to remain in control of the decision-making process while a professional mediator, who is a neutral third party, helps them explore compromises and other options that they may not have previously considered.
In other words, when appropriate, there are many advantages to mediation. 18 of the most important are detailed below.
What happens in mediation stays in meditation. Mediation is a confidential process, which – [many divorcing spouses consider highly desirable – particularly those with significant assets. While the courts can seal family law files, they do not do so often. In addition, A court’s decision could spark interest, including the interest of creditors, competitors in business, the Canada Revenue Agency, the police, Children’s Aid, professional discipline boards, and the media (if you happen to be newsworthy).
Two: Non-Variability of Support
If a court orders include spousal support, that order is typically variable. That means if either of you experiences a material change in circumstances, your support can be changed. Mediation, on the other hand, provides the option of making non-variable support arrangements.
Three: Review of Support
If one of you requests a variation in spousal support, you must be able to prove that you’ve experienced a material change in circumstances. Mediation can provide you with a predetermined date upon which your spousal support will be reviewed. Most judges won’t initiate such reviews due to a perceived lack of jurisdiction.
Four: Formula for Determining Income
In mediation, you and your divorcing spouse can agree to a simplified formula for determining income and can save time and money in the process.
Five: If and When Division of Income
If either – or both – of you are the beneficiaries of a discretionary trust, have restricted-share units, or have options that may pay off in the future but may not, these assets can be divided on an if and when basis during mediation, but this isn’t an option in court.
Six: Release of Spousal Support
Even if the court does not order spousal support in your divorce, there is nothing stopping you or your ex from claiming it in the future. In mediation, a you can agree to a spousal support release that eliminates this possibility.
Seven: Swapping/Sharing Assets
A court cannot require one joint owner of an interest to purchase the interest of another joint owner, require you to swap assets, or require you to divide chattels (tangible, moveable personal property) for any reason other than strict ownership. In mediation, you can both agree to treat a specific asset – or assets – as jointly-owned assets and can, thus, avoid financial disputes regarding who benefits or loses in any post-divorce shifts in value.
Eight: Assuming Debts
A court cannot require one party to assume the other party’s debts or to share in a joint debt, but mediation can provide a solution. For example, if your ex retains a jointly owned business, it makes sense for the business’s debt to go along with him or her, and mediation can stipulate this assumption of debt (there is, however, no guarantee that the creditor will be inclined to cooperate – in which case, refinancing is a viable option).
Nine: Paying Support Directly to a Third Party
Sometimes, a spouse who is required to pay spousal support would prefer to pay a third party than his or her ex directly. Courts are understandably reluctant to go along with such a requirement, but if it’s a deal-breaker for the paying spouse, it can be carefully arranged in mediation.
Ten: Custody/Access Concessions in Exchange for Financial Benefits
Custody and access issues are generally kept strictly separate from support issues by the courts. Mediation is less strict on this issue.
Eleven: Creditor Negotiations
Judges are understandably cautious about handing down orders in family law cases that directly affect third-party creditors’ rights. In mediation, however, many friendly arrangements have been made to help insulate familial assets from creditors.
Twelve: Settlement Involving Third Parties
A court order cannot and does not end third-party involvements. Such resolutions can only be made in a comprehensive multi-party mediation setting.
Thirteen: Support Adjustment Clause
If a payor of support is unsure about his or her future income, that party will likely be hesitant to commit to a support payment that may overextend him or her in the future. Mediation can employ an automatic support adjustment solution – along with other options – to help make signing off on support more palatable.
Fourteen: Dispute Resolution Clause
Divorce agreements can incorporate dispute resolution clauses that build in a cost-effective ADR approach for any future disputes that may arise.
Fifteen: Parenting Coordinators
In mediation, you have the option of working with a parenting coordinator to determine issues related to child custody and can even delegate certain decisions to the coordinator rather than a judge.
Sixteen: Arbitration of Division of Chattels
At mediation, the mediator can orchestrate a summary process for dividing your chattels (tangible, moveable personal property) equitably – or fairly under the given circumstances – thus avoiding the judicial sale that would be ordered by the court.
Seventeen: Experts: Quick and Dirty/Joint/Binding/Hot-Tubbing
At mediation, an expert can provide you with an informal financial report that is far less expensive and far more streamlined than a formal report for the court. If you’re close on your terms, you and your divorcing spouse can jointly retain a single expert (joint), or you can bring your respective experts together to negotiate in an attempt to either reach a consensus or to at least lessen the daylight between the two experts’ opinions.
Eighteen: Creativity with Taxes
Mediation allows you considerable scope when it comes to creatively structuring your affairs in the most tax-efficient fashion, thus creating – in effect – greater wealth to be divided between the two of you.
Consider the Benefits of Mediation with Jennings Family Law
Jennings Family Law is committed to family law that focuses on your needs.
While divorce is always complicated, mediation offers many couples the opportunity to hammer out their differences constructively in a setting that’s tailored to that purpose.