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Mandatory alternative dispute resolution before a court action

By Mark Demas

The Court of King’s Bench has implemented four mandatory pre-court requirements as part of the Alberta Justice Family Justice Strategy.

Initially, these mandatory requirements only apply in Edmonton and Calgary but they will expand across the province as resources become available.

The four mandatory pre-court requirements are:

  • completion of the online Parenting After Separation Course (if applicable);
  • meeting with a family court counsellor (for self-represented parties with dependent children);
  • providing financial disclosure; and
  • participation in an alternative dispute resolution process.

A Notice to the Profession & Public notes that unless a waiver or deferral is granted by the court, these four mandatory requirements must be completed before a party is able to bring an application before the court.

We offer alternative dispute resolution services

At Demas Schaefer Family Lawyers, my partner Sean Schaefer and I can help people complete the alternative dispute resolution process.

Since the stress of going to court can be overwhelming, many people find mediation the preferred alternative. It is a voluntary process that is typically quicker than going to court and it allows participants to have much more control over the process and the result.

Since mediation is a cooperative exercise, it requires all parties to act in good faith. That limits the level of animosity between parties and often allows both sides to find a solution faster and for a lower cost when compared to the expense of court proceedings.

We have helped clients with an array of legal matters, such as parenting arrangements (formerly known as “custody” and “access”), spousal/child support and the distribution of property.

When it comes to mediation, we can represent you in a session or preside over the talks as the mediator.

Steps in the mediation process

Before a family law mediation matter begins, unless the matters to be discussed deal with parenting issues only, the parties should exchange financial disclosure and provide copies to the mediator. Since mediation is a client-centred process, both sides will be heavily involved in the settlement discussion. The mediator will invite conversation and discussion from each party so the mediator can understand and appreciate their positions.

Through a series of meetings, the mediator will lead discussions on relevant issues (parenting plans, property division, etc.) in the hope the two of you can come to a final resolution on all matters.

Once that is reached, the mediator prepares a separation agreement containing the agreed terms. Each party must meet with their own lawyer at this stage to sign the agreement in front of them. That is a formal requirement in the Family Property Act to ensure that any final agreement is enforceable by the courts in the event one party chooses not to abide by the terms of the agreement.

If the two sides are unable to reach a resolution, other methods can be used to try to resolve matters outside the court process. They include providing the other side with a written proposal, attending a settlement meeting with your own lawyers, and converting the mediation to arbitration, where the arbitrator will deliver a binding decision. We can assist with this process as well.

These settlement meetings – sometimes referred to as four-way meetings – are attended by both parties and their lawyers. They can be quite productive if both parties have a desire to be reasonable. It provides an opportunity to hear the legal position of both sides and get immediate feedback. You can also choose to have your lawyers attend mediation sessions with you.

If settlement negotiations fail or one or both sides are not being reasonable, the remaining options are to convert the mediation to arbitration or proceed with a court action.

Do I need a lawyer for mediation?

You can choose whether you want to retain a lawyer to accompany you in mediation. A mediator versed in family law, such as Sean and myself, will be able to ensure that the process is fair for participants without legal representation. This understanding is important as there are unique intricacies and nuances in family and divorce law.

Alternatively, we can provide “behind the scenes” support throughout the mediation process to ensure you have an appreciation and understanding of what is being discussed during mediation and whether proposals being exchanged in that process are fair and reasonable.

Accordingly, some clients want to consult with a lawyer before the mediation begins to give them some preliminary information in advance.

Mandatory pre-court requirements are welcome

I can appreciate why these four mandatory pre-court requirements are in place. As Mickey Amery, Minister of Justice and Attorney General has stated, “Alberta’s government is making the family justice system more accessible to ease the stress on Albertans dealing with family law matters during an already difficult time.”

Government information notes that family law matters are heard in the Court of King’s Bench of Alberta and the Alberta Court of Justice.

Each year, the Court of King’s Bench adjudicates about 60,000 new civil and family matters, 9,000 divorce judgments and 350 civil and family trials. At the same time, the Alberta Court of Justice hears about 17,000 family and child protection cases annually.

It should be noted that the mandatory pre-court requirements do not apply to:

  • applications for protection orders;
  • applications that have been approved to proceed on an urgent basis;
  • the filing of statements of claim/joint statements of claim for divorce;
  • requests for divorce (without oral evidence);
  • joint requests for divorce (without oral evidence);
  • the filing of Statements of claim for matrimonial property/Family Property Division;
  • the filing of Statements of Claim for Unjust Enrichment;
  • notices to disclose – desk applications;
  • applications for service orders;
  • consent orders;
  • appeals from the Alberta Court of Justice; and
  • any inter-jurisdictional application where the applicant or respondent resides outside Alberta.

Contact us for assistance

The legal team at Demas Schaefer can help clients deal with all family law matters, including divorce, child and spousal support and property division. Sean and I can also represent you in mediation or act as a mediator to resolve your dispute in the most cost and time-efficient manner possible. Anyone in northern Alberta can contact us for a free consultation.


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