How Mediation Can Help Resolve a Divorce in Alberta
Mediation uses an impartial mediator to help participants negotiate an agreement. The mediator helps the discussion rather than deciding the outcome for the parties.
What Mediation Is, and What ADR Is
Alternative dispute resolution is the category. The province describes it as many different options, usually less formal processes that allow parties to reach their own agreements, facilitated by a trained neutral third party familiar with parenting conflict, family violence and the impact of conflict on children.
The Court of King's Bench of Alberta describes family mediation as a process aimed at a consensual, informed and fair agreement.
Under the Government of Alberta's Family Justice Strategy, an ADR attempt is required where the parties disagree on issues before seeking court assistance. It must address the issues going to court, have occurred within the past six months, and be recorded on the Participation in ADR form. A party can apply to waive or defer mandatory requirements where applicable; the requirement is not unconditional.
Which option within the category you use is a separate question from whether the requirement applies to you.
How a Mediation Runs, in the Province's Own Programme
What follows describes the Government of Alberta's Family Mediation program. These are that programme's arrangements, not general rules about mediation.
Before the session
In that programme the mediator speaks to each person one-on-one first, to hear what they want to resolve, to make sure they have the information they need, and to identify any safety concerns.
Where financial matters including child support are to be discussed, that programme has the parties exchange financial information first.
During the session
In that programme the mediator does not make decisions for the parties and does not give legal advice.
In that programme a session is informal and two or three hours long, and the programme says most people need one or two sessions.
In that programme, usually only the two people attend, and others may attend if both agree and the person's role is made clear in advance.
What stays private, and what does not
In the Government of Alberta's Family Mediation program, the mediator does not share what was discussed but must report any perceived threat to any person's safety to the appropriate authorities.
After the session
In that programme the mediator writes down what was agreed and sends both people a copy.
That mediation summary is not legally binding. It is for the parties to follow through on, and what would make it binding is a question for the mediator or a lawyer.
That programme's session length, its confidentiality and reporting rules, its non-binding summary, its availability and its eligibility conditions are its own. Eligibility there is programme eligibility, not law.
Who Decides Whether Mediation Fits, and What Is Screened For
In the province's programme, the mediator will help decide if mediation is right for your situation. It is a shared assessment rather than one person's ruling, and it happens in the one-on-one conversation before any joint session.
Certain things are screened for regardless of the answer. All ADR processes include screening for family violence.
Where a court order prevents contact between the parties, they have to check whether the order allows them to meet in mediation, or the order may need to be changed, and a copy of it is required.
Where a mandatory requirement cannot be completed, a waiver or deferral can be requested, with concerns about family violence among the listed reasons.
parenting, decision-making and child custody›What the Law Adds, and How Mediation Relates to Court
The Divorce Act (Canada) defines a family dispute resolution process as a process outside of court that is used by parties to a family law dispute to attempt to resolve any matters in dispute, and it names three: negotiation, mediation and collaborative law.
The Act then places a duty on the parties to a proceeding: to the extent that it is appropriate to do so, they are to try to resolve the matters that may be the subject of an order under the Act through a family dispute resolution process. The qualification opens the provision and is part of the duty.
A parenting order made under the Act may itself direct the parties to attend a family dispute resolution process, subject to provincial law. It is the order that carries the direction.
Separately, the Act places two duties on a legal adviser who acts for a person in a proceeding under it. The first is to encourage the person to attempt to resolve the matters that may be the subject of an order through a family dispute resolution process, unless the circumstances of the case are of such a nature that it would clearly not be appropriate to do so. The second is to inform the person of the family justice services known to the legal adviser that might assist them in resolving those matters and in complying with any order or decision made under the Act.
From the court's side, the Alberta Rules of Court were amended in 2020 to allow a justice to direct by order that the parties participate in a dispute resolution process. For matters that must go to trial, parties may not request a trial date without a certificate that they participated in one.
And under the Court of King's Bench of Alberta's Family Focused Protocol, the justice presiding at an intake conference may engage in mediation, so the process can occur within that court's own steps and not only before them.
the divorce process in Alberta›How a Lawyer Helps
A family lawyer advises on what the applicable Act would otherwise provide, so that you know what you are trading against before you agree to anything.
The lawyer explains how a provision applies to your situation, reviews what a mediation produced, and drafts or revises an agreement where that is what you decide to do.
Whether the requirement applies to your matter, and which ADR option answers it, is a question a lawyer can work through with you.
divorce lawyer in Calgary›Talk to a Calgary Family Lawyer About Resolving Your Divorce
Contact THEBIL Law to discuss your situation and the questions you want to address about resolving it. You can submit a consultation request at any time, and the office will be in touch to arrange a meeting.
THEBIL Law, 5920 Macleod Trl SW Ste 720, Calgary, AB T2H 0K1, Canada. Call 403-457-3128.