Mediation and Collaborative family law

Reaching an agreement out of court is often less financially and emotionally expensive. 

Courts are adversarial. If you go to court, you (or your lawyer) will argue for your interests, and the other party (or their lawyer) will argue for theirs. Unfortunately, this system doesn’t encourage compromise, and your direct input is limited if lawyers are involved. Collaborative family law or mediation are good alternatives if you wish to develop your own agreement and avoid the courts. 

However, family dispute resolution might not be right for you if there is:

• a high level of conflict
• a power imbalance
• family violence.

Mediation is a private process to help you resolve differences. It helps you work out legal disputes without going to court. You both will have an opportunity to meet together or separately with a mediator. Mediators encourage respectful communication. 

Accredited mediators screen cases to decide if a dispute resolution approach is suitable. 

Mediation is always voluntary. This means nobody can be required to participate if they don’t want to. Both parties must be willing to participate and be comfortable when participating. It may work if there are no concerns about family violence or power imbalances. 

Remember to meet with a lawyer to get legal advice. Learn how the law applies to you before starting any family dispute resolution process and making a final decision or agreement.

Mediators are trained to help resolve people’s differences. Mediators are neutral and unbiased—they don’t favour one participant over the other. Some mediators are lawyers who do not give legal advice or make decisions for you. 

Mediators are not regulated in Nova Scotia. There are no standards. There is no governing body to contact about practices and process concerns. 

When choosing a mediator, you may want to ask about their training and request referrals from other clients. Many mediators are members of professional associations that have standards of practice and training. Because mediation may happen virtually, you are not limited to mediators who work in Nova Scotia.

Mediators are not counsellors. Their role is to stay neutral while facilitating a discussion between the participants with an issue to resolve. They will not decide who is to blame or force an agreement. The mediator helps you plan for your future.

First, those involved must agree on mediation to resolve their problems. Mediation is a service that you must pay for. So, the people involved must also agree about the cost of mediation and how they will pay for it. 

If the parties agree to use mediation, the next step is to find a mediator to work with. We have some information about finding a mediator below.

The mediator will generally meet with each participant to:

• gather information
• screen for family violence and power imbalances 
• explain to the participants what to expect.  

If the mediator decides mediation is right for you, you agree on a start date. 

A family law mediator may help participants reach an agreement on:

• parenting 
• child support
• spousal support 
• a division of family property and debts. 

Agreements are put in writing and become legal (binding) if signed by everyone involved. This means the agreement can only be changed in certain situations. Do not sign an agreement without getting legal advice first.

Mediators often need several sessions to share information, discuss the options and reach an agreement. The mediator will help you identify the issues you want to discuss and solve. They listen to what is important to each participant and help them make their own decisions about the future. 

Mediation is a process of compromise and give and take. Neither participant will be a winner or a loser. Remember, the mediator does not represent either of you and is not a decision-maker. 

Mediation should end if an agreement can't be reached on one or all of the issues or the process is not a good fit. 

You may wish to try other non-court options with an advocate present, such as a lawyer-led or collaborative family law negotiation.

Mediation depends on cooperation and goodwill. It may not work out if one of you is unwilling to cooperate, compromise or share important information needed to reach an agreement.  It is usually not effective if one of the participants has a significant power advantage. 

Mediation is generally not appropriate when there has been family violence, including against a child, such as:

• physical, sexual, psychological or financial abuse
• harassment
• stalking
• threats of harm to people, pets or property 
• actually causing that harm
• coercive and controlling behaviour. 

Mediation is voluntary, and you should feel safe and comfortable throughout the process.  Consider mediation only if you are confident expressing your views. You should feel that the other participant will cooperate and that an agreement is likely. 

If you are uncomfortable during the mediation process, speak up with the other participant present or ask for a minute alone with the mediator to explain. This is a voluntary process; you do not have to continue if you are uncomfortable.

Pre-mediation: The mediator prepares for your sessions. The time is used to:

• assess the dispute
• find out your willingness to negotiate 
• arrange the meetings. 

You will get information about the process and how to prepare for the first meeting. The mediator meets with each participant privately to screen for family violence and power imbalances.

You can expect your mediator to discuss things like:

• Voluntary participation: You enter mediation freely. You are not forced to negotiate or settle.
• Timelines: You set the process timelines. It is not controlled by court dates or waiting periods. Normally, it is arranged between you and a mediator.
• Confidentiality: Mediation sessions are private, and all proceedings are confidential to the mediator and you. Mediators usually cannot be asked to give legal or court evidence based on any matters you discuss.
• Decision-making control: The mediator has no decision-making authority and is there to help the participants work together. When you reach agreements through mediation, you keep the decision-making control. This differs from arbitration or going to court, where the decision-making authority is with the arbitrator or judge. 
• Maintaining positive relationships: Because mediation addresses your interests and seeks an agreed solution, the process differs from going to court. You have a greater chance of maintaining relationships.
• Stopping the process: You can stop mediation at any time. This will not affect pursuing other options to find a solution.
• Independent Legal Advice: You should get independent legal advice before mediation and before finalizing an agreement. You need to be informed about and understand your legal rights and responsibilities.

Committing to the mediation process: This is where the mediator explains the processes and procedures. You each explain your issues and priorities. This is the first opportunity for everyone to learn if there is a willingness to reach an agreement. You can develop a cooperative relationship and confidence in the process and the mediator.

Negotiation: You begin to generate options for agreement. Where there is disagreement, the mediator uses facts to build consensus. The mediator may meet separately with you or have joint sessions. 

Settlement: Solutions are evaluated based on general principles and standards, sometimes with outside advice. Your mediator will explain how to reach and document an agreement. When you are all satisfied, an agreement is drafted in clear, specific language. 

Independent Legal Advice: Before signing the agreement, both parties should consult with their own lawyer. 

Yes. 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 make sure that:

• you know what your rights are
• your rights are protected
• 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. This means the agreement can't be changed except under certain circumstances.

No. A lawyer who represents you cannot also be your mediator. This is a conflict of interest. The lawyer cannot be both neutral and your advocate in a mediation.

You can find a trained mediator through:

• Family Mediation Canada at www.fmc.ca or 1-877-269-2970
• ADR (Alternative Dispute Resolution) Atlantic
• your lawyer 
• 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.
• online at nsfamilylaw.ca/services/ways-resolve-problem-without-going-court
• contact us to request a mediator referral, and we will try to help. 

Before you hire a particular mediator, find out their qualifications, training, experience and fees. Discuss their mediating style to see if it meets your needs. Remember to check if your medical plan covers mediation costs.

Collaborative family law uses a teamwork approach to resolve disputes. The aim is to avoid court and work out an agreement. The goal is to reach an agreement or a consent court order. Everyone has their own lawyer, but everyone signs an agreement at the beginning to show commitment to the process and the goal.

You agree that while collaborating, you will not go to court. The private and confidential process requires open communication and cooperation.  

The negotiation process involves four-way meetings that both participants and their lawyers attend. The meetings should be respectful, balanced and fair. Relevant financial and other information is shared, as well as the costs of any hired experts. 

If you decide to go to court, that ends the collaborative process. You may have to hire a new lawyer or represent yourself during the next court process.

Lawyers who do collaborative law have special training. Contact Collaborative Family Law Nova Scotia at www.collaborativefamilylawyers.ca.

• www.nsfamilylaw.ca for family law information on many topics, including divorce, separation, parenting arrangements, spousal support and child support
• Legal Information Society of Nova Scotia to connect with a legal information counsellor and get free legal information
• Nova Scotia Legal Aid for family law legal information and advice
• A lawyer in private practice (lawyer you would pay) who does family law
• Free and low-cost legal help in Nova Scotia.
• The Department of Justice Canada has more information about family law, including fact sheets on: 
  • Parenting Arrangements
  • Divorce and Family Violence
  • Child's Views and Preferences
  • Moving after separation or divorce
  • Duties for parents and others
  • Family Dispute Resolution