Alternative dispute resolution methods, such as family law mediation, are used to resolve family law matters in Alberta far more frequently than litigation.
Of these methods, mediation is a particularly popular option in many situations—including divorce cases. Spouses may find it challenging to meet and resolve complex matters through face-to-face discussions and negotiation without professional guidance. A mediator can provide that, facilitating and guiding discussions in a less contentious setting than a courtroom.
Let’s look at what to expect from mediation, how to navigate the process, and why the main myths surrounding the mediation process are wide of the mark.
Benefits of family law mediation in resolving Alberta disputes
The main benefits of mediation for resolving family law matters revolve around time, cost, confidentiality, control, flexibility, and relationships.
Time
Mediation saves time compared to litigation because there is no need to wait for a backlog of cases to clear to free up court time or judges’ availability. Disputing parties can arrange mediation privately with mediators (who are also often family lawyers) at any convenient time, either in-person at their offices or with video sessions, potentially accelerating a resolution.
Cost
Compared to litigation, mediation is generally far more cost-effective when seeking resolutions to family issues. With fewer procedures and formalities, and less preparation time required to gather evidence and present arguments in court, many families benefit from the lower costs of mediation.
Confidentiality
Family law mediation remains private and confidential, meaning that matters are not aired in pubic as in court trials—and nothing in mediation can be used against you in court. This encourages open and honest communication focused on resolutions rather than “winning” the case.
Control
Mediating parties stay in control of decisions. If they do not like a proposal, they can refuse to sign an agreement—unlike in a courtroom, where parties must abide by the judge’s decision.
Flexibility
Mediation also allows greater flexibility and creativity when designing solutions. Litigation results in an outcome dictated by a judge’s interpretation of Alberta family law and case law, whereas mediation allows a more personalized approach.
Relationships
Mediation can also help to preserve family relationships because, unlike litigation, it is designed to be non-adversarial. There is no “winner” or “loser”, the process is voluntary, and sessions are facilitated by a neutral third-party mediator in an informal environment. This can reduce tensions, which is especially important when spouses with children are separating and need to work out co-parenting arrangements.
The Alberta family mediation process
Mediated cases have a high success rate in Alberta. Voluntary mediation begins when disputing parties select a mediator (for court-ordered mediation, a mediator will be selected for you). It is important that no conflict of interest exists, i.e., that the mediator has never advised or represented either party before.
The information-gathering stage may be handled by the mediator’s paralegal to avoid any perception of bias.
Mediation sessions
Before mediation begins, the mediator will likely meet the parties separately during an introductory meeting. The parties’ suitability for mediation will be assessed, ground rules will be agreed upon, and questions can be answered.
The mediator gains a full understanding of the unresolved issues and, when the mediation sessions begin, will attempt to guide the parties constructively towards common ground and a possible resolution. The number of sessions required depends on the number and complexity of issues, the cooperation levels between parties, and other factors.
The mediator may advise both parties of the legal consequences of any decisions they make or point them towards legal resources but will not provide legal advice. However, either party may bring a family lawyer to the sessions.
Mutually acceptable agreement
If the mediating parties can reach a mutually acceptable agreement, the mediator will typically draft a written contract outlining the terms. This must be signed by both parties and can then be filed with the court as a legally binding agreement.
How can you prepare for family mediation?
Here are several tips to help you prepare for family law mediation:
- Keep your main goals realistic: What do you hope to achieve from the mediation?
- Gather all documentation: Do you have all relevant court orders, agreements, appraisals, and financial disclosure documents at hand?
- Maintain a spirit of compromise and flexibility: How willing are you to meet the other party halfway and listen to their point of view for a mutually acceptable solution?
- Get enough sleep and rest: Did you rest enough to enter mediation sessions with the right energy and frame of mind?
- Consider legal assistance: Will you need legal advice before making an important decision during mediation?
Top myths about family mediation
Here are some of the most common misconceptions about family law mediation in Alberta:
Mediation is only for simple family law cases
Mediation is an effective alternative dispute resolution method for almost any type of family law matter if the opposing parties have the right mindset and commit to seeking a mutually beneficial resolution. Complex cases may require more sessions to reach full agreement but the flexibility, personalization, and creativity offered can be beneficial in such cases.
Mediation means compromising what’s rightfully yours
Mediation requires a spirit of compromise but nobody will ask you to give up what’s rightfully yours or settle for less. The idea is to be fair but flexible enough to work on creative, mutually beneficial solutions together—your rights and responsibilities carry equal weight to the opposing party’s. Remember, you decide whether or not to accept a proposal.
Mediation is too expensive
If mediation prevents litigation, it will save you money. So, during a family dispute, avoiding mediation over cost concerns may be counter-productive, especially if a resolution cannot be found through discussion, negotiation or collaboration between lawyers.
Mediation is only for harmonious couples
Mediation is intended to help people resolve disputes—so it can benefit almost any type of family matter, even couples facing tension and emotional fallout after separation. As long as the parties are prepared to work together on a solution, a trained mediator will use strategies to ease tensions during the sessions, increasing the chance of staying on track toward an agreement.
You don’t need a lawyer if you’re mediating
This may be true—it’s certainly not a requirement to get legal representation for mediation—but it is advisable to seek legal advice if you are about to make a big decision that impacts your future. Consulting with a family lawyer before or during mediation can help protect your rights and interests, ensuring you don’t give up anything that is rightfully yours in the proposed agreement.
Mediation is too emotionally draining
Family matters are never easy to settle because of the intense emotions and allegiances that come to the fore. However, compared to a litigated solution, mediation is generally less stressful and emotionally draining because it is less formal, less adversarial, and focused on mutually beneficial agreements rather than “winning” or “losing”.
Mediation doesn’t work if one party acts unreasonably
Mediation does require a reasonable degree of communication, cooperation, and compromise but don’t discount the process just because a spouse or family member has acted reasonably or made excessive demands in the past. Skilled mediators are used to de-escalating tensions and working towards creative solutions in a safe, structured environment—even with “difficult” parties.
If you live in the Calgary area and need assistance with a family law matter, the experienced lawyers at Jennings Family Law can help you. Call (403) 316-0138 to request a confidential consultation, contact us directly online, or email Warren Jennings directly at warren@jenningsfamilylaw.com.
