Mediation in Family Law
Last month I published a blog post providing readers with basic information about the process of mediation. The purpose of this article is to provide further information with respect to mediation specifically within the family law context.
In addition to all of the advantages of mediation discussed in the previous post (e.g., it’s private, confidential, typically less expensive than court, often results in quicker resolutions, allows parties to retain control of the outcomes, etc.), mediation has much to offer parties going through family conflict.
Litigation and the court system are inherently adversarial; inevitably, there is a “winner” and “loser”, leading to further tension and strain on relationships. Mediation, on the other hand, may reduce future conflict between parties by improving communication and problem-solving skills. This is particularly important when children are involved – in those circumstances parties will usually stay connected and their lives will intertwine as they attend their children’s birthdays, graduations, weddings and so on. These important events are much less stressful and anxiety-ridden for the children involved when there is cooperation and communication between the parents. In this way, mediation is particularly conducive to keeping parties focused on the children and what is in their best interests. If clients are able to resolve future conflicts on their own without engaging legal counsel or turning to the court system, we consider that to be a huge success.
The number of family law issues that can potentially be resolved through mediation are virtually limitless and can include such things as: child support, spousal support, parenting schedules, division of property, where the parties will live and what the separation will look like, to name a few. Most importantly, mediation is not just for those spouses or parties that have a fairly amicable relationship. Mediation can be effective in high conflict situations where communication has completely broken down. Although some individuals may fear that in that context their voice will not be heard and that they will “lose” the negotiations as a result, a skilled mediator ensures that all parties’ viewpoints are expressed and acknowledged and that one does not take advantage of the other. The more that parties are able to understand each other’s underlying interests and concerns, the more likely they are to work together constructively to come up with mutually beneficial resolutions.
In addition to the potential to preserve relationships and maintain focus on the children, mediation gives parties the opportunity to express emotions and work through the post-separation or divorce dynamic. Oftentimes, the main task for any family lawyer during the initial interview is to extract the legally relevant issues from the client’s (typically) emotionally driven narrative. This is because the court system is solely concerned with the resolution of legal issues. The feelings and emotions clients experience at the end of a relationship, while not legally relevant, are very important and need to be addressed and processed. Mediation is a potential forum for that to occur.
Although high conflict between parties is not a bar to mediation, there are certain circumstances in family law where mediation may not be appropriate. For example, if there are concerns surrounding domestic violence, chronic alcohol/drug abuse, neglect, etc., mediation may not be the right avenue for resolving interfamilial conflict. Please contact a mediator for further information in this regard if these issues may be applicable in your situation.
I think it is important to reiterate that while some mediators may be lawyers, a mediator does not take the place of independent legal counsel of your own lawyer. A mediator is ultimately a neutral third party whose sole focus is to improve communication and facilitate resolutions amongst the parties. As such, the mediator cannot provide legal advice and cannot advocate for your optimal position. We strongly encourage each party to seek independent legal advice before and throughout the mediation process. Further, any memorandum of understanding or agreement that is reached in mediation will not be legally binding upon the parties unless it has been incorporated into a settlement agreement and signed off on by both parties and their lawyers, or incorporated into a court order.
If you are interested in further information regarding the mediation process, booking a mediation session, or obtaining independent legal advice on your family law conflict, please do not hesitate to contact our office at 780-482-7691.
NOTICE TO READER: The summaries of legal rights and remedies described above are general references to the Alberta laws existing at the date of the publication and may not apply to the reader’s individual circumstances. Also, the laws may change. These legal summaries are not to be relied upon as applicable to your individual circumstances and are subject to a complete review of the facts and applicable laws in every case.