As part of the recent overhaul of Canada’s Divorce Act, there are new obligations placed on parties to family disputes, and their lawyers, to pursue alternative means of dispute resolution whenever possible before turning to litigation in court. The reasons behind the change emphasize the fact that options such as arbitration or mediation often allow a family to resolve disputes more quickly, and for less cost. Most importantly, however, they can be beneficial to the best interests of children.
As part of the changes to the Divorce Act, the bests interests of the child have been placed front and centre in all aspects of resolving a family conflict or dispute. Mediation and arbitration are viewed as more collaborative and less combative than litigation, allowing parents to work together instead of against one another. This can help the parents develop better communication skills, which will be necessary to continue working together as they co-parent their children post-divorce or separation.
Below, we will provide information as to what parties can expect from the mediation process specifically, and how they can best prepare ahead of time.
Once you have decided to pursue mediation, the first order of business will be to select a mediator. Mediators should be accredited and trained, and have extensive experience in family law matters. For this reason, many families opt to work with a mediator who is also a family law lawyer.
Mediators often have different approaches to the process, so it’s important to ask questions when deciding on a mediator to ensure each party has the same expectations for how the process will unfold. If there any concerns about safety or intimidation, it is important to ask the mediator how they will factor this into the process in order to keep the parties safe, while moving the resolution forward.
In family disputes involving particularly complex issues, such as the division of a family business or complex investments or pensions, it may be helpful to find a mediator with related experience. However, this is not required, as outside experts can be brought into the process to provide additional guidance when necessary.
There are certain things each party can do in advance to prepare for the family mediation process.
Once you’ve selected your mediator, it can be helpful for the parties to arrange individual consultations prior to beginning joint mediation sessions. This will allow each party to meet with the mediator individually and set out their expectations for the process and outcome.
Mediation will typically take several hours, spread out over a number of sessions. These sessions may take place in person, or virtually. In cases where there are safety concerns, your mediator will likely arrange to meet with the parties separately, even if the sessions occur simultaneously. This could mean that the parties will be in separate rooms with their individual legal counsel, and the mediator will go back and forth, or the mediator may host separate virtual ‘rooms’ and go back and forth to negotiate potential solutions to each dispute.
Once the parties have come to an agreement on the various issues, the mediator will record the various agreements in writing, so they can form the basis for a formal agreement between the parties. Each person will then review the agreement separately with their own lawyer to ensure they have a full appreciation of how the agreement will impact them going forward before signing. Note that this independent legal advice will be necessary whether or not you have a lawyer representing you throughout the mediation process.
Andrew Koeman, a partner at Mincher Koeman, is an experienced family law lawyer and accredited mediator, dedicated to helping families find workable and productive solutions through mediation. Andrew understands that the participants will often need to remain in contact well after mediation is over, and so he strives to reduce conflict and encourage collaboration throughout the process. To schedule a mediation consultation with Andrew at Mincher Koeman in Calgary, contact our office at 403-910-3000 or reach out online.
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