By Sean Schaefer
The separation process can be overwhelming and filled with acrimony, especially if there are children or sizeable assets involved. Reaching an agreement on how to move ahead may seem impossible without the court’s assistance. However, there is another solution that is now mandated in Alberta: mediation.
Mediation allows both parties to have much more control over the process and reach a result tailored to their needs. This shared process saves time and money for the participants and it limits the level of animosity between parties.
At Demas Schaefer, we have lawyers who have completed specialized mediation training. This allows them to assist couples reach a mediated resolution, based on open and honest discussion. 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.
Our team members can preside over the talks as a neutral third party or represent your interests in mediation.
How the process works
When a couple is divorcing, mediation can be a very effective tool when deciding on issues such as:
- the division of property, assets and debt;
- spousal and child support;
- decision-making responsibility (formerly custody); and
- visitation rights.
Before mediation begins, the parties must exchange financial disclosures and provide copies to the mediator, who is a neutral third party. This information is crucial when it comes to informing the mediator about the monetary issues being negotiated.
The ex-partners may choose to meet with the mediator in individual sessions so each party can freely express their perspective. Then at the start of the joint session, the mediator will confirm the ground rules and goals of mediation while reminding participants of the importance of communication and cooperation.
Discussions on contentious issues can then start. The mediator will guide the discussion, inviting input from both sides and asking questions or obtaining more information when needed. That allows them to understand and hopefully appreciate the positions of both parties.
As the talks progress, the unbiased mediator may be able to suggest compromises that the couple did not consider before. After all, new ideas arise when people work together. That usually does not happen immediately, so participants must allow enough time to find a solution that is acceptable to both ex-partners to be reached.
When that happens, the mediator prepares a separation agreement based on the agreed terms. With that in hand, each party must meet with their own lawyer to sign the agreement in front of them. That step 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.
If settlement negotiations fail, other non-litigious methods can be used. They include providing the other side with a written proposal and attending a settlement meeting. This session, sometimes referred to as a four-way meeting, is attended by both parties and their lawyers. If both parties are reasonable and want the matter settled, these discussions can be an efficient way to achieve that.
If there is still no agreement, the last option is to proceed with a court action.
You can have a lawyer for mediation
There are unique intricacies and nuances in family and divorce law. That is why some parties choose to retain a lawyer for the mediation process.
Other people consult with a lawyer before the mediation begins to give them some preliminary information in advance. Another option is to retain a lawyer with whom you can discuss matters outside the mediation process.
In all these scenarios, a family lawyer can ensure your interests are represented and the process is fair.
Documents to have
Before mediation begins each ex-partner must gather any documents that are relevant to show ownership or control over any asset. These assets include the marital home, savings accounts, investments or any valuable possession, such as a car or a work of art.
You also need to bring any agreements or contracts that you have signed with your partner during your relationship.
Necessary documents to bring to a mediation include:
- any pre or post-nuptial agreement;
- proof of ownership for assets;
- paystubs that show your income level;
- investment and bank statements;
- property valuations;
- pension valuations;
- loan agreements and details of any debts; and
- documents relating to your children’s special needs (if applicable).
Many benefits to mediation
There are many reasons to settle a family law dispute through mediation. Perhaps the biggest is that you are part of the process of crafting a resolution that suits your circumstances. The lower cost, as compared to a court hearing, is also a major incentive.
Other benefits include:
- It can be good for children to see their parents cooperating.
- Mediation can help improve your ability to communicate with your ex-partner in future matters related to the children
- Mediation lessens tensions and reduces an adversarial atmosphere.
- It is confidential and private.
- It is shorter and simpler than a court process.
Mediation is not for everyone
Mediation is an effective tool for couples who are prepared to talk things through in a spirit of compromise. It has kept many divorces and separations out of the courtroom. However, it’s not for everyone.
It is not the right approach in the following situations:
- When there is a history of domestic violence or child abuse in the relationship.
- If one of the partners feels intimidated or fearful of the other.
- If there is such a clear inequality in bargaining power between the parties.
- When one partner shows they will not act in good faith or be willing to compromise in the talks.
Mediation is a form of ADR
Meditation is a key part of Alberta’s Family Justice Strategy that aims to resolve family law matters outside of the court system. As Mickey Amery, the provincial Minister of Justice and Attorney General has noted: “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. We are expanding pre-court services so that Albertans can have access to a range of services before filing a claim or attending court.”
The Court of King’s Bench has implemented four mandatory pre-court requirements as part of the strategy. They 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 (such as mediation) process.
Contact us for assistance
Some team members at Demas Schaefer are trained mediators and can either preside over sessions or provide legal advice to a participant in the talks. We know how to identify key concerns and find common ground, leading to a mutually agreeable resolution. Anyone in northern Alberta can contact us for a free consultation.