Mediation is a form of Alternative Dispute Resolution (ADR). In Mediation, you and your former partner work with a neutral Mediator to resolve disagreements without asking a judge to make decisions for you. The biggest advantage is that you remain involved in creating the solution rather than handing control of your future to the court.
If you are separating or getting divorced in Alberta, you may hear lawyers use the term ADR. The current mandate from the courts is that, with very few exceptions, you must have tried ADR before you are able to bring a court application in Family Law matters. ADR stands for Alternative Dispute Resolution, and Mediation is one of the most common forms.
At its simplest, ADR describes ways you can resolve legal disagreements without relying on traditional courtroom litigation. Mediation falls squarely within that category because you are trying to reach your own agreement with the assistance of a neutral professional.
For many families, that’s a much better place to start.
How Does Mediation Work?
In Mediation, you and your former partner meet with a neutral Mediator.
Your Mediator does not represent you or your spouse. Your Mediator also does not act as a judge and decide who is right.
Instead, your Mediator identifies the issues that need resolving, understands what matters to each of you, and explores possible solutions.
You may need to discuss:
- Parenting arrangements
- Child support
- Spousal support
- Property and debt
- The family home
- Pensions and retirement
- Future communication
The point of Mediation is to give you a structured environment in which you can work through the things you do not agree about.
What Makes Mediation Different From Court?
The biggest difference is control.
If you go to court, you present your positions and evidence to a judge. Ultimately, the judge decides everything for you.
In Mediation, you make the decisions.
Your Mediator identifies options you had not considered. Your lawyers can explain your legal rights and obligations. Financial or parenting professionals may provide additional information when necessary.
But nobody can simply impose a mediated agreement on you.
You have to be able to say yes.
That means you have an opportunity to create solutions based on the realities of your family instead of simply asking what a court might order.
Is Mediation the Only Type of ADR?
No.
You have several ways to resolve family disputes outside traditional litigation. Depending on your circumstances, you might use lawyer-assisted negotiation, Collaborative Divorce, Mediation, Arbitration, or a combination of different approaches.
Mediation is particularly useful because it gives you a neutral person whose job is to keep the discussion moving.
If communication between you and your former partner tends to go off the rails, having someone manage the conversation can make an enormous difference.
Does Choosing Mediation Mean You Don’t Need a Lawyer?
You can choose to go through Mediation with little or no support from your own lawyer, but it’s important to know that as your Mediator is neutral, the Mediator cannot give legal advice or act as your individual legal advocate.
You should still understand your legal rights before making final decisions.
With Mediation, you get to choose how much involvement you want your lawyer to have. You may attend Mediation with your lawyer, or you may consult your lawyer separately during the process. Before signing a final agreement, you should have independent legal advice so you understand exactly what you are agreeing to. Indeed, under the provisions of the Family Property Act of Alberta, it is imperative that you have received independent legal advice and sign your agreement with your independent lawyer.
Is Mediation Right for You?
Mediation works particularly well when you and your former partner are willing to exchange information honestly, listen to each other’s concerns, and genuinely look for solutions.
You do not have to like each other.
You do not have to agree.
You simply need enough willingness to participate in the process.
That is the value of ADR. Instead of immediately asking, “How do I win?”, you can ask a much more useful question:
“How do we solve this?”
For many separating families, Mediation provides the structure you need to start answering that question.
FAQs
Yes. Mediation is a form of Alternative Dispute Resolution that allows you to work toward an agreement outside traditional courtroom litigation. It is usually a required step before proceeding to court.
No. Your Mediator is neutral and does not make the final decisions. The Mediator helps you identify issues, explore options, and work toward solutions you can both accept.
You still have other options. You may continue negotiations, try another dispute resolution process, or use the court system if an agreement cannot be reached.
Early in her legal practice, influenced by her late uncle who was a Justice of the Court of Queen’s Bench, Marla Miller, K.C. became a Family Law Mediator. She has been helping families through mediation for over 30 years. In 2001 she, along with Pierre Boileau, K.C. and others, was one of the founding members of the Association of Collaborative Professionals (Edmonton). She has been an active volunteer with that Association ever since.
One of the first Family and Divorce Lawyers in Edmonton to make a commitment to give up litigation as an option, Marla remains passionate about helping her clients settle outside of court by finding agreements that meet their needs and interests. As both a Registered Collaborative Family Lawyer and a Registered Family Mediator, Marla is one of the most experienced family Mediators in Edmonton.