Family mediation and collaborative family law are non-court ways to resolve family law disputes.
What is mediation?
Mediation is an alternative to court. It is a way of working out legal disputes together without going to court. It is a voluntary process. Both parties must be willing to participate in mediation, and feel comfortable doing so.
Mediators are neutral, unbiased professionals who are trained in helping spouses or partners come to an agreement, such as a cohabitation agreement or separation agreement. If you are separating you may need help reaching agreement on issues such as who the children will live with, parenting time (access), possession of a family home, debts and support payments. The mediator helps you plan for the future. Mediators will not decide who is to blame or try to impose an agreement. Under Canada’s divorce law (the Divorce Act), your lawyer should tell you about the opportunity for mediation and may be able to answer many of your questions about it.
How does mediation work?
Mediators are generally psychologists, lawyers, or other professionals trained in alternative ways to resolve disputes, sometimes called 'alternative, or 'assisted' dispute resolution. Once hired, the mediator will meet with both of you to identify your particular issues. The mediator will listen to what is important to you and help you to come to your own decisions about the future. Mediation is a process of compromise and ‘give and take,’ where the aim is that neither party will be a winner or a loser. Remember, the mediator works for both of you and only wants to help you come to an agreement that you’re both satisfied with. Each mediation is unique and it will be adapted to the particular needs or wishes of your family.
How do I know if mediation is right for me?
Mediation is generally not appropriate if your spouse or partner abused you or your children in any way, including physically, sexually, emotionally, psychologically, verbally, or financially.
Mediation is voluntary, and you should feel safe and comfortable throughout the process. Consider mediation only if you feel confident expressing your views, and feel that you and your spouse or partner will be on an even playing field in discussions, and are likely to reach an agreement.
If I hire a mediator, do I also need a lawyer?
Mediators do not give legal advice. Even if your mediator is also a lawyer, each of you should have your own lawyer. The mediator will work to find agreement on issues, but you need your own lawyer to ensure that your rights are protected and that the law has been followed. If the mediation is successful, either the mediator or your lawyer will write a draft agreement. If the mediator writes the draft, be sure to have your own lawyer review it before you sign. Once signed, it is a binding contract. As changes are only allowed if both parties agree or a court orders them your own lawyer’s advice is very important.
I already have a lawyer, can the lawyer be our mediator?
For a successful mediation, both parties must trust the mediator to be completely neutral. Your lawyer’s job is to protect your interests and negotiate on your behalf. Your lawyer is not neutral. Lawyers can be mediators, but only where both you and your partner together decide to hire the lawyer specifically for mediation, and not to provide legal advice. In such a case, the lawyer will act only as the mediator.
How do I decide which mediator is best for me?
Before you hire a particular mediator, you will want to ask about their qualifications, training, experience and fees. Be sure to discuss with the mediator his or her personal mediating style to see if it meets your needs. Remember to check if your medical plan covers mediation costs.
How do I find a mediator?
Mediators are listed in the yellow pages of the telephone book, both online and in-print, under ‘Lawyers’ or ‘Marriage, Family & Individual Counsellors’. You can also contact Family Mediation Canada at www.fmc.ca or 1 800 362-2005, or contact us to request a mediator referral and we will try to help. Your lawyer may also be able to suggest a mediator.
The Family Court or Supreme Court (Family Division) in your area may also be able to refer you to a mediator. Go to nsfamilylaw.ca or contact your local court (courts.ns.ca) for more information.
You will also find find further information about family mediation, and other ways of resolving a family law issue without court, online at nsfamilylaw.ca/services/ways-resolve-problem-without-going-court
What is collaborative family law?
Collaborative family law uses a teamwork approach to resolving family law disputes. The aim is to avoid court. Each spouse or partner has their own lawyer, but everyone signs an agreement at the outset that they will not go to court. The process requires open communication and cooperation, and is private and confidential. The negotiation process involves 4 way meetings which both spouses and their respective lawyers attend. The meetings should be respectful, balanced and fair. Relevant financial and other information are shared, as well as costs of any experts that might be agreed upon and hired. The end result of the process would hopefully be a binding separation agreement or consent court order.
What happens if I decide to go to court after trying the collaborative process?
If either spouse decides to go to court that ends the collaborative process. At that point each spouse would need to get a new lawyer and basically start from scratch.
Why should I consider mediation or collaborative family law instead of court?
Courts are adversarial, which means that your lawyer will argue for your interests and your partner’s lawyer will argue for his or her interests. In court decisions, there are sometimes ‘winners’ and ‘losers.’ Unfortunately, this system doesn’t encourage compromise and your direct input is very limited. For people who wish to develop their own agreement and avoid the court process, mediation or collaborative family law are good alternatives. Finally, reaching an agreement out of court is often less expensive.
Non-court alternatives are generally not appropriate where there is a history of family violence or if either spouse or partner is not willing to fully participate in the process.
How do I find a collaborative family law lawyer?
Lawyers who do collaborative law have special training. To find a collaborative family lawyer contact Collaborative Family Law Nova Scotia at www.collaborativefamilylawyers.ca or look in the telephone book under 'Lawyers'.