Nobody who goes through a divorce wants to end up in court. Why would you invite stress, expense, and delays into your life if there is an alternative way to settle matters?
In fact, the typical Hollywood depiction of divorces being fought in court is the exception to the rule in Alberta.
Couples generally work it out around the kitchen table, around the boardroom table at a law firm, or around a mediator’s table.
Mediation is a way to remain in control of decision-making while also keeping stress levels down, costs manageable, and without the delays associated with litigation.
Mediation is an alternative dispute resolution method favoured by many divorcing couples and judges in Alberta.
It keeps matters out of the court and, instead, requires the expertise of a professional and independent mediator, who is often (but not necessarily) a family lawyer certified in mediation.
The mediation process is intended to bring a divorcing couple to the point where they can agree on all the major terms of the separation so that a judge can approve the divorce.
That is no small undertaking in many contested divorces. The spouses may be way apart in their understanding of what’s fair. The following issues may need to be resolved:
The mediator must use his or her experience in mediating complex disputes and bringing them to a satisfactory conclusion. It requires the couple to be on relatively amicable terms, prepared to work together to negotiate a settlement, and commit to it in writing.
In some divorces, most of the outstanding issues are uncontested and just a couple of final issues need the assistance of a mediator to help “broker” an agreement between the spouses.
Importantly, the mediator is just the facilitator of the process. He or she does not provide legal advice to either party but can explain the legal consequences of decisions.
The separating couple must both agree to hire the mediator and during the mediation process they retain full decision-making power.
If an agreement can be reached, both spouses must commit to it in writing before the mediation can be deemed a success. A legally binding agreement can then be submitted to the court.
Jennings Family Law is excited to share that Beecher Menzies, the premier family lawyer in Airdrie Alberta, has joined our team of compassionate and highly skilled family lawyers. Beecher brings 24 years of experience helping Canadian families navigate the difficulties of divorce, separation, spousal & child support, and estate disputes with the most amicable path forward. Consider discussing the mediation process with Beecher Menzies or any of our highly experienced and compassionate family lawyers.
The divorce mediation process may vary slightly according to circumstances but the standard steps in Alberta are as follows:
There are pros and cons of mediation – and it’s not right for everyone.
Generally, people prefer mediation if they want to prevent delays, expense, stress and other difficulties and inconveniences associated with a court trial. Mediation also works well if a couple wants to retain decision-making control and keep matters private.
Mediation may not be right for you if:
Your choice of mediator is important. You and your partner will need to discuss it and agree on the appointment. It’s important that you are on speaking terms and prepared to discuss matters calmly, openly and respectfully.
Different mediators suit different situations. Your outstanding issues may be many or a few specific ones.
For property or support-related issues, a lawyer or retired judge may be the best choice. If the issues centres around parenting issues, you may want to look for someone with experience in custody and access issues.
Both partners need to be comfortable with the choice of mediator as you will both need to talk openly in front of them.
If your family lawyer does not provide mediation services, you can check at your local court or search online for accredited or certified mediators.
Before appointing a mediator, ensure that they have the credentials you need, which should include at least the following:
Just as you may need to “screen” a number of mediators to find the right one, you and your partner need to be “screened” by the potential mediator to ensure that you’re not wasting your time.
As already mentioned, mediation is not right for every couple in Alberta. The mediator may meet with you and your spouse separately and screen for any history of partner abuse, mental health issues or any other factors that could impede a successful outcome from mediation.
Your mediator must confirm that the process can be a fair and safe one. Usually, mediation requires the two parties being in the same room together but in exceptional cases, it can proceed with the mediator meeting with you in separate rooms, by telephone, or even online.
Mediation still involves completing some paperwork – but less than with a family court process.
Your mediator drafts a mediation agreement that you and your partner will need to sign. Read it closely and ask questions if you are not sure about anything. It will generally include the following details:
Before you sign the agreement be clear on whether your mediation is “open” or “closed”:
In most cases, mediation is closed. This is to allow both parties to speak freely in meetings without worrying about the implications later if the matter ends up in court.
No couple should go into mediation without some preparation. The steps required are discussed in more detail below but make sure that you are clear on the following before beginning mediation:
We’ve touched already on some of the benefits of divorce mediation. Let’s look at each one in a little more detail.
Mediation may solve outstanding issues in hours, days or weeks rather than the months (or even years) that a court trial usually takes.
Mediation is affordable for most couples and saves the high legal fees and court fees associated with litigation. Even if only partial agreement is reached (agreement on certain issues) it can save thousands of dollars in legal costs.
Court trials can be adversarial and often end with a “winner” and a “loser” and, in some cases, both parties may lose out. Mediation aims for a fair and mutually acceptable result. This is often a fairer way to resolve issues than litigation.
Litigation can be very complex and numerous court processes are involved. This can be difficult to understand. Mediation is much simpler and your mediator can explain everything in plain English.
Court trials are high stakes and can be very stressful for both partners (and their children in many cases). Mediation is a more informal process that most people find less stressful.
Mediation provides a private, confidential forum with an independent mediator. Court trials are a matter of public record so there is no privacy about the case or the outcome.
An amicable, mediated agreement can help maintain harmony in the family and is normally better for maintaining good relationships than a hostile court battle. If parents can get along and work together, it’s usually beneficial for the children in the long run.
A court-imposed order means that a judge decides on unresolved issues. With mediation, you and your partner remain in control of decision-making and only sign when you are both ready to do so.
With mediation, you select your mediator and the same person will be present throughout the process. With a court trial, you do not get to choose the judge and you will need to accept whoever is assigned to your case on the day.
Court trials are formal and driven by set processes with judges constrained by strict adherence to the law. Mediation sessions can be arranged over the phone or internet as well as in-person, and resolutions can be made according to what you and your ex-spouse perceive as fair.
Every mediation provides an opportunity to collaborate on a solution that works in your interests rather than according to the strict application of the law.
Mediated outcomes produce high compliance levels because both parties are involved in the process and commit to the agreement – rather than having an order forced upon them.
Every mediation session is somewhat unique but there are certain expectations of you and your partner as the process starts:
You will also be expected to make decisions on the following:
Being prepared will ensure you enter mediation in the right frame of mind and with everything you need for a positive result – providing your partner is also prepared.
This includes practical steps as well as preparing your self mentally for the process.
In particular with the practical steps, bring the right documentation with you. If you are trying to mediate financial matters (property and debt division), consider bringing the following:
Mentally, prepare yourself by considering the following:
Mediation is generally an open forum but it usually proceeds more smoothly if both you and your partner commit to a few specific rules that ensure an orderly and efficient process.
These generally include the following:
If you and your partner are successful in mediating an agreement, the mediator will create a document called “minutes of settlement” or a “memorandum of understanding”.
While this document is less detailed than a full separation agreement, it may form the basis of the separation agreement, which will usually be drafted by your lawyer so that it is legally binding and can be enforced by the court.
At Jennings Law in Calgary, our experienced family lawyers are also mediators and can help you and your spouse reach resolutions with your divorce issues – without ending up in court.
Call (403) 316-0138 to arrange an initial consultation.