What is Mediation?

By Brittany Koenig, Paralegal Navigator, Calgary

In the context of family law, mediation is a process where parties come together with a neutral third-party (the mediator) to share and discuss identified issues regarding divorce, separation, or other family law matters in hopes of resolving those issues by way of a mutual agreement.

Why Choose Mediation? 

Mediation is a more cost-effective and collaborative way to resolve family law conflicts. The parties are given an opportunity to share their experience and concerns while working with a mediator who can provide information to help support the parties through the process as they work toward resolution. Mediation is also confidential, which means that parties are free to share openly and honestly without fear that the information will be used against them in Court. Most matters are resolved outside of the Courts through an alternate dispute resolution process such as mediation and it’s a good option as the average cost of trial is upwards of $30,000. 

In addition to mediation, other forms of alternate dispute resolution include negotiation and arbitration. 

Negotiation is generally when there are efforts made by the parties to reach a resolution – such as correspondence between counsel attempting offers of settlement or the parties’ efforts to reach a resolution independently.

Arbitration is similar to mediation in that the parties come together with a neutral third-party (the arbitrator) to discuss the identified issues, but the arbitrator is given specific powers to decide on those issues - that decision is also known as an arbitration award. In Alberta, arbitrators are bound by the Alberta Arbitration Act, which sets out specific rules that govern their arbitration powers, the process, and the parties’ powers to appeal (this is analogous to the Alberta Rules of Court, which sets out the powers of the Court and the Judges / Justices who grant Orders).

Furthermore, in March 2020, the Alberta Rules of Court were changed giving the Courts the power to order parties to participate in an alternate dispute resolution process. Parties are also required to prove that they have participated in an alternate dispute resolution process before they are allowed to request trial dates. There is an option to waive the alternate dispute resolution requirements; however, those are considered on a case-by-case basis. 

Types of Mediation

In the context of family law mediation, there are three different styles of mediation: evaluative, transformative, and facilitative. 

Facilitative mediation refers to when the mediator facilitates the process, provides legal information, and resources, and works with the parties to reach a resolution. Once a resolution has been reached, the mediator can also assist the parties to prepare a formal written agreement setting out the agreed terms. 

Evaluative mediation (also referred to as directed mediation) is where the mediator provides parties with legal information and advice as to whether their position, as it relates to the specific issues, would be upheld in an arbitration or Court setting. This type of mediation is usually facilitated by a lawyer, retired Judge or Justice, or other legal professional who has the capacity to provide the parties with legal advice. 

Transformative mediation is a ground level approach that focuses on supporting and coaching the parties to “transform” potentially unconstructive communication or conflict resolution styles in hopes of improving the party’s overall relationship. Ultimately, transformative mediation is less focused on trying to come out of the mediation sessions with an agreement, but rather focuses on helping the parties to work more collaboratively together on a go-forward basis, thereby reducing the potential for future conflicts that may require third-party intervention. Transformative mediation is typically conducted by a mental health professional.  

Some mediators also offer binding mediation, which is a mediation/arbitration combination. Parties are given the opportunity to mediate their issues first and if they cannot reach an agreement, the mediator is given specific powers specifying when they are allowed to shift from mediator to arbitrator. 

Do I need to attend mediation with a lawyer? 

If the parties wish to participate in lawyer assisted mediation, you will need to hire a lawyer on a full retainer – meaning that you have to hire a lawyer to represent you and your interests, and that lawyer is the primary point of contact for your legal matter. However, you do not need a lawyer to go to mediation. 

Most mediators will not agree to mediate if one party is expected to attend alone while the other is attending with a lawyer (this can create a power imbalance and may not be conducive to a collaborative mediation process). Most family law matters can be resolved within three, 2-hour sessions with a mediator; however, mediators are usually flexible to accommodate any length of time or number of sessions necessary so long as the process remains voluntary, and the parties are continuing to work constructively toward a resolution. 

If you choose to attend facilitative mediation as a self-represented litigant (i.e., without a lawyer) the process is largely dictated by the parties. Mediators often have the parties pre-screened to obtain basic preliminary information to get the file started. Although the mediators will typically screen for the potential issues to be addressed, the specific details or facts are often reserved for the mediation sessions to ensure impartiality. The pre-screen may also include questions regarding potential family violence and, in some instances, the mediator may make an alternate recommendation for a mediator who is more experienced with those types of family conflict.

During the initial mediation session, the mediator will:

  1. Go over any housekeeping items related to their services, fees, contact throughout the sessions, and general procedures that are specific to that mediator and/or their office;
  2. Allow each party to share their story;
  3. Establish, collaboratively with the parties, a list of issues that the parties wish to mediate;
  4. Provide any homework or action items for the parties to complete and come prepared with for the next sessions (see the example below) - this is usually to obtain evidence, information, or documents that will help to determine specific facts to be mediate; and
  5. Set-up a time for the parties to come back after the mediation.

Example - Let’s say one of the issues to mediated is childcare, the location, cost, availability, and pick-up / drop-off of the child to that childcare facility. The mediator may ask the parties, if the information has not already been made available, to go home and research the various childcare facilities and come back to the next session with that information to mediate the issue once there is enough information to do so. 

After your mediation sessions, it is common to receive a mediation summary from the mediator that outlines any discussions, notes, agreements, homework/action items, and the plan for the next session.

At the conclusion of your mediation, the mediator will typically:

  1. Provide the parties with any formalized written agreement based on the agreements reached during the mediation sessions. It is also a best practice for mediators to provide the parties with a draft of that mediated agreement for their comments and input before providing them with a final clean copy to be finalized with a witness or a lawyer*; and
  2. Send a closing letter summarizing:

(a) Any agreements reached, or referring to the formalized written agreement;

(b) Any recommended next steps;

(c) Providing any suggested resources or information that may be helpful to the parties; and

(d) Their final fees for services provided through to the resolution of their mediation services.

*It is important to note that there are certain situations where the parties are required to have independent legal advice for their written agreement to be considered valid by the Alberta Court, specifically:

  1. where the agreement speaks to adult interdependent partner support (a.k.a. spousal support) as it is required under Alberta Family Law Act, SA 2003 c F-4.5, s 63(3)(a); or
  2. where the agreement speaks to the division of family property as it is required under the Alberta Family Property Act, RSA 2000, c F-4.7, s 38(2).

In these cases, written agreements should include a certificate of independent legal advice and affidavit of execution for the parties to execute with their respective legal counsel. These are not legislative requirements in British Columbia, but agreements are much stronger with independent legal advice. 

If you have completed mediation and require independent legal advice, we have a team of legal coaches who can work with you to review your agreement, your rights and entitlements, and sign that agreement with you.   

If you have not retained a lawyer on a full retainer and choose to proceed with mediation as a self-represented litigant, we have experienced legal coaches who can work with you to prepare for your mediation. We also have trained and accredited mediators who can help you with your case. Call today for your free consultation on more tips on representing yourself in mediation.