During a separation or divorce in Alberta, couples are often locked in disputes that are difficult to resolve.
However, the court is not the only option in these situations. Disputing couples are often encouraged to try to resolve matters out of court using alternative dispute resolution methods, such as mediation or collaboration between lawyers.
Mediation and collaborative divorce are different processes with their own advantages and disadvantages, but you will find that both could be preferable to litigation.
Let’s take a look at what you need to know about these two different dispute resolution methods if you find yourself in this situation and need to decide the right path to take.
How does divorce mediation work in Alberta?
Family mediation is designed to help couples resolve issues that arise from their divorce or separation, such as financial matters, child custody/parenting, and so on.
Couples meet together with a trained and independent mediator who facilitates the process — but, unlike a judge in a court, makes no decisions or gives no “verdict”.
The mediation sessions are arranged at mutually convenient times and are conducted in a spirit of “no-fault” being apportioned to either party for the separation.
The mediator may or may not be a lawyer but, importantly, can offer no legal advice — he/she can only advise each partner of the legal consequences of any decisions made.
So, some couples attend mediation sessions with their lawyers present, which is usually permitted.
There is no obligation to make an agreement and, importantly, the separating couple remains in control of the final decision. Either party can back out of the mediation at any time.
Often, when couples divorce, they can agree on some of the issues but contest others. If they are prepared to communicate about finding a solution and conduct negotiations, mediation can be a very effective process.
Several mediation sessions may be necessary before an agreement can be found, and the process may last several weeks or even months.
Advantages of divorce mediation
Divorce mediation has many advantages over litigation and is often the preferred option for disputing couples and families in Calgary.
The divorce process is difficult enough without facing the stress, expense and delays of a court trial. Often, couples can overcome their differences and find common ground during mediation so that a judge needs only to approve the agreement for the divorce to be finalized.
Divorce mediation may be the recommended option for you due to the following reasons:
- Lower legal costs (and court fees)
- Fewer delays (the Calgary courts are busy)
- Reduced stress and emotional turmoil
- Better for the children (if applicable)
- More like to be amicable as there is no winner/loser
- Better for parents who need to maintain a future relationship for the benefit of the children
- Promotes communication rather than adversarial encounters
- Remains confidential, unlike public court proceedings
- More control over the pace of proceedings
- More control over the final decision
- Less formal than the court
Learn More → How to Succeed with Your Alberta Divorce Mediation
How does collaborative divorce work?
Collaborative divorce is another alternative to litigation, helping to reduce the stress and antagonism that often surface during the divorce process.
With this method, couples meet with their lawyers present to try to resolve any outstanding issues together. Unlike with mediation, the couples themselves (or their lawyers) facilitate this process and there is no independent third party.
Proceedings can be as formal or informal as you like, but collaborative divorce is generally far less formal than court proceedings.
Importantly, with collaborative divorces, both spouses (and their lawyers) must agree that they will refrain from commencing litigation or making threats about it.
Negotiations must be interest-based rather than adversarial or threat-based, and the aim is that both parties agree on all the terms of the divorce settlement.
If litigation is eventually necessary, neither of the divorcing partners may use the same lawyer who represented them during the collaborative divorce process. Both partners will need to hire new lawyers for representation in court. That’s the rule in Alberta.
As with mediation, a spirit of transparency, cooperation and compromise is necessary for divorce collaboration to be successful. This includes producing the necessary documentation when discussing key financial matters — the division of marital property is often one of the main sticking points when it comes to relationship breakups.
Sometimes, financial specialists and accountants may need to provide opinions and expertise for collaborative divorce sessions so that the couple can reach a fair agreement. This also ensures that nothing important gets missed (such as tax issues).
Collaborative divorce may become more complex if a family business is involved in the negotiations.
If collaborative divorce is successful, however, the outcome can foster a better relationship between parents than an adversarial court battle — again, this is usually preferable for couples with children where parents must work together after the marriage ends.
The costs of collaborative divorce vary greatly, depending on the time involved and the need for specialists. If you require considerable professional expertise about finances or health-related matters to help divide the estate fairly, these costs may be shared between the partners.
Is mediation cheaper than other divorce alternatives?
Costs are understandably a major factor when considering how to proceed with a divorce. The financial futures of separating couples are often uncertain and each party wants the peace of mind that they have enough.
When it comes to the costs of mediation compared with other dispute resolution methods, it’s important to factor in all the circumstances of your case, including the following:
- How many issues are unresolved
- How complex are these issues?
- What’s the likelihood of success?
- How many sessions may be required?
- How well do you and your partner communicate?
- What’s the size of the estate?
- Are there children from the marriage?
- What is the appetite for avoiding litigation?
Mediation with little chance of success could be a waste of money — it may be better to attempt a collaborative process with lawyers present instead (and it may end up in litigation anyway).
But, for most couples, mediation is a worthwhile process and the potential outlay will pale in comparison to the costs of a court trial.
Collaborative divorce costs will depend on the fees charged by your divorce lawyers, the complexity of the unresolved issues and how many sessions are required to resolve matters. Again, if the outcome is a successful resolution, it can be a great “investment” that can save you and your ex-spouse a lot of money in litigation.
With the other advantages of mediation and collaborative divorce factored in, both options usually deserve consideration for separating couples.
At Jennings Family Law in Calgary, our lawyers can help you resolve even the most complex family law disputes using alternative dispute resolution methods like family mediation or collaborative divorce. Book a confidential case evaluation to get started.