mediation in Family law

Family law mediation in Canada is a process designed to help couples resolve separation or divorce disputes without going to court. It is a form of Alternative Dispute Resolution (ADR) that aims to facilitate communication, negotiation and agreement between the parties with the help of a neutral third party, the mediator. Here is a comprehensive explanation of family law mediation in Canada:

The purpose of mediation

The main goal of mediation is to help the parties reach mutually acceptable agreements on various aspects of their separation or divorce, such as:

mediation in Family law
  1. Parental Plans: Includes custody, access and decision-making responsibilities regarding children.
  2. Child maintenance: Determining the financial support needed to raise children.
  3. Spousal support: Solving issues related to financial support of the spouse after separation.
  4. Division of property:Dealing with the division of assets and debts accumulated during the relationship.

Key features of mediation

  1. Voluntary: Participation in mediation is usually voluntary, meaning that both parties must agree to participate in the process.
  2. Impartial third party: The mediator is an impartial professional trained in mediation techniques and family law issues. They do not advocate or provide legal advice, but rather facilitate constructive discussions.
  3. CONFIDENTIALITY:  Mediation sessions are confidential. This means that if mediation does not result in a settlement, the discussions and information shared during mediation cannot be used as evidence in court.
  4. Empowerment and Control: Mediation empowers the parties to make decisions that directly affect their lives instead of having a judge decide for them in court.
  5. Informal: Mediation sessions are less formal than formal court sessions and encourage open communication and cooperation between the parties.

 mediation process

Initial consultation

The parties usually meet individually or jointly with the mediator for an initial consultation. This session explains the mediation process, discusses the concerns of each party, and evaluates whether mediation is appropriate.

Mediation sessions

Mediation sessions consist of structured discussions led by the mediator. Meetings may focus on specific issues or cover multiple aspects of the separation agreement. The mediator facilitates communication, helps the parties identify common ground, and explores potential solutions.

Agreement

If the parties agree on all issues, the mediator helps draft a legally binding document called a Mediated Separation Agreement (MSA). This document outlines the terms of the agreement, such as parenting arrangements, child support payments, and property division.

Legal review and advice

Each party should review the MSA with an independent attorney before signing. Legal advice ensures that the parties understand the rights, obligations and consequences of the agreement.

The role of lawyers

While attorneys typically do not participate in mediation sessions, parties are encouraged to seek independent legal advice throughout the process. Lawyers can provide guidance on legal rights, review proposed settlements, and ensure fairness and protection of their client’s interests.

Court approval

Once the parties have signed the MSA, it may be submitted to the court for approval. A judge will review the agreement to make sure it is fair and meets legal requirements, particularly regarding the best interests of the children.

 Benefits of mediation

  • Affordable: Mediation is often less expensive than litigation.
  • Faster resolution: Dispute resolution through mediation can be faster than the judicial system.
  • Relationship Maintenance: Mediation promotes constructive communication, which can be helpful, especially when the parties continue to co-parent.
  • Customized Solutions: Parties can tailor agreements to fit their unique circumstances and needs.

When might mediation not be appropriate?

Mediation may not be appropriate if:

  • Domestic Violence: In cases where there is a history or risk of abuse, mediation may not guarantee safety or equal bargaining power.
  • Complex legal issues: Some legal issues may require court intervention to resolve.

Result

In Canada, family law mediation provides a structured and effective way for couples to resolve disputes arising from separation or divorce. Mediation aims to minimize conflict, empower the parties, and foster long-term positive outcomes for families undergoing significant change by promoting communication, cooperation, and appropriate agreements.