Mediation is a form of alternate dispute resolution; it is a negotiation facilitated by a neutral third party (the “mediator”) Parties can attend with or without lawyers to assist.
There are advantages to mediation:
- It is generally more expeditious to attend mediation than obtain a Court date. Mediation dates are often available within one to two weeks.
- Mediation is less expensive than attending Court. If the parties reach a resolution they will have saved fees related to Questioning, Pre-Trial Conference, written briefs, trial preparation, and ultimately trial. If you negotiate a resolution where you end up with slightly less than you may have received in Court, you will still have the benefit of reduced legal fees and reduced mental/emotional stress.
- Mediation allows parties to deal with both legal issues and non-legal issues. Family law is tied up in emotion. Parties attending mediation can feel heard, and express the why behind their wants.
- The parties retain control of the outcome. A judge does not know you, your family, or your children. You decide what is best for your family.
- Judges are governed by legislation and case law precedent. Parties can agree to something “outside the box” that works for their family, which may not be something a Court can or will order.
- Mediation is without prejudice. This means offers to settle cannot be shared with the Court at a later date. Without prejudice negotiations allow both parties to engage in open and honest communication without being concerned that potential concessions may be used against them at a later date.
- Under Rule 4.16 of the Alberta Rules of Court, parties are required to participate in a dispute resolution process before scheduling a trial. If you do not settle all your matters, you will leave mediation with a clearer idea of the positions, perhaps have narrowed the issues/resolved some, and taken a procedural step in your litigation process.
Things to consider before attending mediation:
- The mediator assists the parties in reaching an agreement. The mediator does not decide who is “right” and who is “wrong”.
- The parties need to negotiate in good faith. If one party is not emotionally ready, or if one party is taking a “scorched earth” approach, the mediation may not be successful.
- Mediators will screen for family violence before scheduling. The existence of family violence does not preclude a trained mediator from conducting the mediation – the mediator will adapt the process to meet concerns.
- The training your mediator has is important. A mediator who is also a lawyer will be able to provide legal information during the process.
- A mediator cannot give you legal advice. You should consider consulting a lawyer before attending, or after with respect to the proposed resolution.
If you want more information of mediation, are looking to hire a trained mediator, or want independent legal advice with respect to a mediation call Bell and Stock today. We are able to help.
