Introduction
It goes without saying that divorce proceedings are an emotionally charged process, especially since their outcome has a significant impact on the lives and finances of the parties. It is with this in mind that the parties usually turn to the courts to settle the matter. However, there are lesser-known procedures that can be much more advantageous for the parties than going to court, including family mediation. The latter is usually less expensive, faster, and less stressful than legal proceedings, which is why it is worth knowing.
At Boavista Legal Services, we are fortunate to have several experienced family lawyers who can help you determine the optimal dispute resolution method and find a solution customized to your interests and needs.
What is family mediation?
The family mediation procedure is quite simple, where the family mediator accompanies the parties in exploring a solution that suits everyone. It is important to note that although many family mediators are lawyers trained and accredited in family mediation, they may also be members of other professional associations such as a psychologist or psychotherapist. This allows for different approaches but all towards the same objective: to find an economical, rapid and mutually satisfactory solution to resolve the conflict between the parties. The traditional approach of the lawyer mediator combines his or her knowledge of family law and conflict resolution to listen to the parties, propose solutions, and guide them towards a mutually beneficial solution.
This procedure is therefore an alternative to legal proceedings, where the parties are really masters of their will. This is because the parties are the ones who lead the process and decide whether to accept or reject the mediator’s proposals. The family mediator therefore proposes solutions that are non-binding, and the parties can decide what to do with them.
You will therefore have understood that the mediator lawyer is above all a neutral and impartial party. From the outset of family mediation, he seeks to listen to the parties and understand their claims and interests. By listening, he tries to facilitate exchanges between the parties, so that they can express all their wishes and emotions. As he deepens his understanding of the issues in dispute, the family mediator can propose personalized solutions and thus guide the parties towards a solution that will please everyone.
Benefits of Mediation
As mentioned earlier, family mediation is a process that offers countless advantages compared to court proceedings. For your information, below is a non-exhaustive list of some of these benefits.
1. It is a less expensive procedure
It is well accepted that legal proceedings are generally very expensive. During legal proceedings, not only will you have to pay your lawyer’s fees, but you may also have to pay all the ancillary court fees and the sum required to be paid by judgment or settlement as well! You will also have to plan to take out your wallet to pay various expenses: the transcription of testimonies, the notification and service of proceedings, the allowances and allowances due to witnesses, expert opinions, etc. It is clear that when you add up all these sums, you can end up with an exorbitant result.
On the contrary, family mediation can be very affordable. First, it should be noted that the Quebec government has set up a mediation program, according to which certain ex-spouses are entitled to free hours of mediation. This means that, in addition to saving on all the other costs associated with a legal proceeding, the parties will not have to pay the fees of the family mediator, since it is the government that will cover them, up to a certain number of hours.
For more information about this program, visit: Government of Quebec: Family Mediation Program
2. It’s fast!
A legal procedure is also a long-term process. In the case of a divorce, after a file has been opened, a case protocol must be prepared, the file must be perfected, witnesses must be called, and much more. Even when the judgment is finally pronounced, everything will not be over, since it is necessary to wait until the 31st day following the date of the judgment for the divorce to be official. It is not uncommon for a divorce proceeding to take well over a year to be complete.
On the other hand, family mediation is much faster than legal proceedings. In addition to choosing a mediator and preparing for the meetings, all you have to do is attend and share your observations. At the conclusion of the mediation session, if you reach an agreement, the lawyer-mediator can prepare a mediation agreement, which you sign and then become bound to respect. This is why family mediation is much faster than the legal procedure. Careful though! You may want to have this agreement confirmed by judgment, in which case you could also be subject to court delays and some court fees. Consult a lawyer after your mediation to know more.
3. Mediation is less stressful than the court process
In light of the previous lines, you will understand that family mediation will undoubtedly allow you to save you stress. A divorce can be a difficult time for mental health, and it’s even more difficult to add the added stress of going to court. A court is certainly intimidating for some, and its formality bothers more than one. However, family mediation is a completely different reality. Usually, its informal setting allows you to calm the spirits and proceed in a much calmer atmosphere. In family mediation, the mediator is there to support the parties, and they can even address fundamental interests and need that would not usually be covered in depth in traditional litigation. It is therefore clear that family mediation can be less stressful and more inclusive.
Role of the Family Mediator
The primary role of the family mediator is to promote safe and respectful exchanges, where the mediator is there, above all, to ensure that each of the parties freely communicates his or her needs and expectations to the other. In this way, he ensures that the family mediation session takes place on a fair basis. The mediation is guided by the interests of each party and their children.
As mentioned earlier, the family mediator is a neutral, impartial party who does not make any binding decisions. He may make suggestions for solutions to the parties, but the parties are never forced to accept them.
In short, the mediator is a kind of peacemaker, while the parties remain the masters of the game. The mediator is only there to direct the process, ensure that exchanges are conducted in a respectful manner, reduce communication barriers, and provide background information. The mediator is there to help both parties reach a mutually beneficial solution.
For more information on this subject, please see: Government of Quebec: Role of the Family Mediator
Mediation process
Generally, the family mediation process is relatively straightforward. First, it should be noted that of course, the mediator and the two ex-spouses are present. These persons are also able to invite other persons, if the mediator and the parties consent to it and the mediator considers that their presence would be required, provided that these persons are neither experts in the present dispute nor legal advisers to either party.
Not every case that comes before a family mediator will follow the same identical procedure. Nevertheless, most of the sessions begin with a presentation of the facts, i.e. the family situation, which makes it possible to assess the relevance of the mediation. Then, the parties communicate their needs, as well as those of their children, if applicable. Subsequently, the mediator helps the parties find different settlement options, making various proposals to the parties and listening to their proposals, if any.
Following these exchanges, if an agreement is reached, the mediator is then called upon to write a written summary that he or she gives to the parties. Normally, this summary is accompanied by information on the steps to be taken to ratify the agreement by the court or have it homologated by the special clerk, as the case may be.
Expected results
Of course, the optimal result, which everyone wants, is to reach an agreement that will close the dispute once and for all and avoid legal proceedings. Thus, an out-of-court settlement is the ideal outcome. This scenario is also quite plausible: according to a survey conducted by SOM in 2017, 84% of parents who have used family mediation have managed to reach an agreement with their ex-spouse. Thus, most ex-spouses who have used family mediation have been able to reach an amicable agreement, thus agreeing on their parenting plan and on certain financial settlements.
However, even if you do not reach an agreement, that does not mean the mediation was a waste of time. You would have at least started a frank discussion with the other party, understood their interests and moved closer to a settlement.
When to opt for mediation?
When a divorce is in order, it is recommended to consult a lawyer or family mediator as quickly as possible, even before legal proceedings are initiated. By consulting a lawyer or family mediator from the start, you increase your chances of being able to resolve everything amicably rather than in court, which is advantageous for you, as seen above. In short, the sooner you opt for mediation, the better!
What is more, it is important to keep in mind that opting for family mediation is in no way restrictive. In other words, consulting a lawyer or a family mediator does not make you lose your right to legal proceedings. If the family mediation process is unsuccessful and no agreement is reached, you always have the option of taking your case to the competent court to decide the dispute.
Conclusion
In conclusion, family mediation offers an interesting avenue for parties in the process of separation, divorce or any other legal conflict of a family nature. It saves time, money, and creates creative, mutually satisfying solutions. Unlike court proceedings, where there is often a clear winner and a loser, mediation can allow both parties to win a solution that respects their rights and interests.
However, it is true that family conflicts can sometimes be emotionally charged and fraught with important family and financial consequences, so it is not always possible to reach an agreement. If you have tried mediation without success or think it will not work for you, our family law team can represent you in court proceedings and/or negotiation.
Indeed, it is important to remember that there is a whole continuum of methods for resolving family conflicts. From the freest to the most restrictive, there is mediation, followed by negotiation and finally legal proceedings.
Do you want personalized advice for your situation or start a process of resolving your family dispute or a legal application? Contact Boavista Legal Services’ team of family law lawyers now.
Waiver — The purpose of this article is to inform and raise public awareness of legal issues. The legal information in this article is provided for informational purposes only and is likely to vary significantly over time and according to the precise facts of each situation. This article is not a substitute for a lawyer’s legal opinion and does not engage the liability of Boavista Legal Services Inc., its lawyers, articling students, employees, successors and subcontractors.
