Disagreements between separating family partners can be difficult, often involving very contentious legal issues about children, child and spousal support, and division of family property, debts and liabilities. Some of these disputes end up being decided by Judges in Court. But what if you do not want to go through the cost (both emotional and financial), delay and uncertainty of going to Court? What if you want to try to resolve these issues privately between yourselves or, if you can’t resolve it between yourselves, with the assistance of someone with dispute resolution experience in the area? This is family law mediation. Many of you ask: What are the benefits of Calgary Alberta family law mediation? In today’s blog, Calgary senior family lawyer Peter Graburn explains what they are.
Calgary Alberta Family law mediation can take many forms, including:
“Non-Lawyer Led Mediation” – this can be called “Old-School” mediation, where the parties hire someone with dispute resolution training to help them come to an agreement in a co-operative, non-adversarial manner that takes into account both parties wants, needs and interests.
These days, many family law mediators are lawyers (although they do not act as a lawyer for either party, hence called “non-lawyer led mediation”). The mediator helps the parties come to an agreement on the legal issues that need to be resolved, writes it down and then the parties take that written agreement to their respective lawyers to put it into a legally binding Separation Agreement;
- a pledge by all (clients and lawyers) to engage in non-positional negotiations to reach a mutually acceptable resolution without going to Court; “Lawyer-Led Mediation” – this is more properly called Collaborative Law. In this process, each party retains their own Registered Collaborative Lawyer and the 2 lawyers act as one mediator to try to get the parties to come to an agreement (while still giving legal advice to their client). As indicated in a previous article by our firm on mediation and arbitration in British Columbia [“Family Mediation and Arbitration”, the Collaborative Law mediation process is based on the following principles:
- honest and good faith communication and exchange of information;
- a goal of creating shared solutions that take into account the interests of both parties, and;
- the withdrawal of the lawyers (and any other professionals hired by the parties, ie. appraisers, business valuators, etc.) if either client takes an adversarial or positional bargaining approach or withdraws from the Collaborative Law process and commences court proceedings;
“Judge-Led Mediation” – in this process, more properly called Judicial Dispute Resolution (or JDR), a Judge or Justice will meet informally with the parties (often together with their lawyers) to discuss the situation and try to get the parties to come to an agreement, which would then be turned into a Consent Court Order. This process could also involve Binding JDR where, if the parties do not come to an agreement, the Judge or Justice is authorized by the parties to make a decision enforceable by Court Order;
“Mediation / Arbitration” – this process, which might also be called “Private Binding JDR”, involves hiring a neutral third party experienced in the area (usually a senior family law lawyer) to first try to mediate an agreement between the parties. If not successful in mediating an agreement between the parties, the Mediator / Arbitrator is then authorized under the provincial Arbitration Act to make a binding decision (called an Award) based on the law and evidence presented during the mediation. The Award can then be filed and enforced as a Judgment in Court, often bringing any future disagreements about enforcement of the Award back to the Mediator / Arbitrator for further resolution. Read Peter Graburn’s article on how he can assist you with mediation-arbitration in Calgary.
Calgary Alberta Family law mediation has many benefits over having the Courts decide your family law dispute for you, including cost, time and privacy benefits. However, Calgary Alberta family law mediation is a voluntary process – unless both parties agree to some form of mediation, the dispute will have to be resolved by the Courts. For more Alberta mediation general advice click here.
MacLean Family Law is proud to have many senior lawyers skilled and experienced in interest-based negotiation, mediation and (if necessary) arbitration to resolve family law disputes through a variety of respectful, cost-effective and confidential dispute resolution processes.