Understanding the Divorce Mediation Process in Alberta

mediation for Calgary ResidenceNobody 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.

What is divorce mediation?

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:

  • Child custody and parenting
  • Child support
  • Property and debt division
  • Spousal support

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.

Contact Our Divorce Mediation Lawyers

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.

Divorce mediation steps

The divorce mediation process may vary slightly according to circumstances but the standard steps in Alberta are as follows:

1.     Decide if mediation is right for you

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:

  • You and/or your partner are not willing to share the cost of hiring a mediator
  • You have an emergency situation that requires an urgent court order (e.g., an issue involving your spouse and your child)
  • You and your partner separated on poor terms and you feel you will not be able to negotiate fairly and respectfully
  • You and/or your partner are not prepared to share financial information and be open and honest

2.     Select a mediator

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:

  • Official accreditation or certification
  • Experience of mediating cases like yours
  • A good track record of success
  • The ability to explain matters and answer questions in plain language
  • The necessary skills and honesty to ensure that mediation is right for you and your partner

3.     Go through the screening process with your mediator

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.

4.     Read and sign the paperwork

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:

  • Your mediator’s name
  • The details of meeting dates
  • The payment terms
  • What you and your partner have agreed to mediate
  • The documents you require and how to share them
  • How the process will be ended if there is no agreement

Before you sign the agreement be clear on whether your mediation is “open” or “closed”:

  • Open mediation is when you, your partner, and your mediator can give evidence in court about what happened during mediation and documents can be shared
  • Closed mediation keeps the details of mediation meetings private – no one can repeat what was said and only certain documents can be shared in court later

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.

5.     Prepare for and begin mediation

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:

  • What the purpose of the mediation is – what you are setting out to mediate
  • What your final agreement can legally include
  • What will happen in the mediation sessions – and how long/how many sessions may be necessary?
  • Whether you will meet together or separately
  • What documents you will need to bring with you
  • How you should share key financial information (for financial disclosure in property/support issues)
  • What happens if you reach an agreement?
  • What happens if you don’t reach an agreement?

Contact Our Divorce Mediation Lawyers

Why should you choose divorce mediation?

We’ve touched already on some of the benefits of divorce mediation. Let’s look at each one in a little more detail.

It’s quicker than litigation

Mediation may solve outstanding issues in hours, days or weeks rather than the months (or even years) that a court trial usually takes.

It’s cheaper

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.

It’s fairer

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.

It’s simpler

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.

It’s less stressful

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.

It’s confidential

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.

It’s better for family relationships

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.

It keeps you in control

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.

It maintains continuity

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.

It’s more flexible

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.

It’s customized

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.

It works!

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.

What is expected of you at mediation in Alberta?

Every mediation session is somewhat unique but there are certain expectations of you and your partner as the process starts:

  • Commitment to spending the necessary time: the timeframe varies considerably and, while most mediations are completed in 6-10 hours (several sessions may be needed), they can take longer
  • Commitment to negotiation and open discussion: entering mediation in the right spirit is important for your chances of success
  • Commitment to bring the right documentation: if financial disclosure is required, you will be expected to bring the right documents to the mediation
  • Open-mindedness, flexibility, and patience to explore different solutions

You will also be expected to make decisions on the following:

  • Whether you and your partner will have lawyers present (remember that the mediator cannot provide legal advice to you or your partner)
  • Mutually acceptable dates and times to schedule the session(s)
  • How payment for the mediation will be made – usually it’s split 50/50 and paid before the session starts or after it ends

Preparing for divorce mediation

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:

  • Any necessary documentation relating to real property
  • Current bank account and investment statements
  • Current loan statements, including mortgage statements
  • Credit card statements
  • Most recent pension statement
  • Life insurance policy documentation
  • Blue book or black book values for your vehicle(s)
  • Income tax returns and notices of assessment (three most recent years)
  • Recent pay stubs
  • Corporate financial statements for the last few years (if you are self-employed)
  • Monthly budget of expenses
  • Costs associated with your children (extracurricular activities, education, medical/dental)

Mentally, prepare yourself by considering the following:

  • Your long-term goals, g., healthy and happy children, financial security, etc.
  • Your needs and expectations from mediation
  • The things you want to avoid, such as a negative impact on your children, uncertainty, etc.

What are the rules of divorce mediation?

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:

  • Only one person may speak at a time
  • Focus on potential solutions – not on the other party
  • Focus on problem-solving – not on advocating solely for one’s best interests
  • Commitment to any binding agreements reached in mediation
  • Entitlement to ask the other party to verify information provided
  • Understand that, without compromise, no agreement will be reached
  • Mediation will only proceed as quickly as the slowest party involved in the process
  • No decisions will be made by the mediator
  • Any issues involving children must be solved in their best interests

What happens after you reach an agreement?

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.

Get help with divorce mediation in Calgary

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.

 

Contact Our Divorce Mediation Lawyers

 

 
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