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Divorce Mediation

Divorce Mediation - Heidi Dinning

Divorce Mediation

What is Divorce Mediation: A Quick Guide for Couples

Divorce mediation is a more collaborative and cost-effective alternative to court. It aims to put the couple’s best interests at the forefront and create a fair and mutually acceptable agreement.

Understanding Divorce Mediation

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Divorce mediation is a process that helps couples navigate through their divorce in a fair, reasonable and hopefully, amicable way. It’s an alternative dispute resolution (ADR) method where a neutral mediator guides them through the negotiation of an agreement with the goals of it being mutually acceptable.

Divorce mediation offers a more efficient and collaborative approach as an alternative to engaging in a court battle that can be lengthy, costly and traumatic.

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The Mediator

The mediator is a neutral party, who is also an expert in the process. The Mediator’s role is to guide the conversation and the negotiations. They don’t have the authority to make decisions for the couple but rather assist them in reaching their own decisions towards a fair and reasonable agreement.

The mediator acts as a facilitator, helping the couple understand their options, providing a balanced environment where both parties can communicate effectively, expressing their desires, concerns and proposals for settlement.

The Outcome

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Divorce mediation can address all aspects of the divorce, including child and spousal support, property and asset division, and parenting/child custody arrangements. The primary goal is to be solutions focused, mitigating unnecessary conflict, reduce legal expenses, and establish an agreement that is fair and legally sound for both parties.

The atmosphere of mediation can also help reduce tensions and negative emotions often found in a formal and tense court room. 

Couples also have more control over the outcome, which leads to better satisfaction and long-lasting agreements. 

Mediation is a very good option for divorce negotiations.  It may however, not be suitable for all matters, particularly when there’s a high level of conflict, addiction, a personality disorder or a history of abuse.

Divorce and Family Law in Alberta

Alberta has a unique legal requirement prior to going straight to court, parties involved in family law disputes must consider Alternative Dispute Resolution (ADR) processes such as mediation. It is not mandatory to go through an ADR process, but it is a requirement to explore the options prior to making a court application. 

Recommendations and suggestions made by a mediator are not legally binding and a mediator cannot force either party to settle the dispute or accept a particular solution.

In Alberta, you have several options to legalize your agreement. It’s very important to have a lawyer review your agreement, and it is a requirement for each party to seek independent counsel to review.

If you choose lawyer assisted mediation, your legal counsel will complete the filing. 

If your mediation is not legally assisted, your mediator will likely have access to paralegals or legal counsels that they use for the completion of the legal component of the agreement. 

You can also file your own agreement with help from a Family Court Counsellor through Justice and Solicitor General Resolution Services, or independently. 

Court application forms can be obtained either in person or online from the Family Law Information Centre.

The Mediation Process

Divorce mediation is an alternative dispute resolution process that allows couples to negotiate a mutually acceptable agreement with the help of a neutral third party mediator. The goal is to create a fair, legally sound, and mutually acceptable agreement while minimizing hostility and post-divorce controversy.

Choosing a Mediator

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One of the critical aspects of divorce mediation is selecting a mediator. The couple should look for a trained, neutral, and experienced professional who can help guide them through the negotiations.  Both parties must agree on the mediator prior to moving forward. Ensure that you feel you can trust, you are comfortable with, and they have no conflicts with you or your spouse. This person will be playing a critical role in your divorce negotiations, so you want to choose the right person.   

Preparing for Mediation

The mediator should give you information on what to bring to your first meeting, including a list of relevant documents, financial records, and any other information pertinent to the divorce. This may include bank statements, mortgage documents, tax returns, and more. By having all the necessary information on hand, the mediator will be better equipped to help the couple negotiate and reach an agreement.

During this preparation phase, it is also essential for both parties to have a clear understanding of their priorities and their goals. Knowing what one wants to achieve in the mediation process can help facilitate a smooth negotiation, leading to a fair and reasonable outcome for both parties.

Negotiating and Settlement

The actual mediation process typically involves the couple and the mediator meeting in an informal office setting or conducting sessions online. With the mediator’s guidance, the couple will discuss and negotiate the various issues related to the divorce, such as parenting and child custody, child support, and property division.

During these discussions, the mediator, while neutral and non-biased, will often provide helpful insights and suggestions to help the couple find common ground. They may also help to establish a timeline, set small goals, and manage expectations.

While the mediator is not authorized to make decisions on behalf of the couple, their experience and knowledge can be invaluable in reaching a fair and mutually acceptable agreement. This approach to divorce can be less costly, less time-consuming, and less emotionally taxing compared to litigation, ultimately benefiting all parties involved.

Benefits of Divorce Mediation

Cost Savings

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Divorce mediation is often a more cost-effective option compared to traditional litigation. The reason for this lies in the fact that couples who opt for mediation generally require fewer billable hours than those who go through a lengthy court battle with legal fees. 

Time Efficiency

Another advantage of divorce mediation is its time efficiency. Since the process encourages open communication and negotiation between parties, it has the potential to take less time to reach an agreement than going through court proceedings. This can be particularly beneficial for couples who are eager to move on with their lives and minimize the emotional strain of the divorce process.

Preserving Relationships

Lastly, divorce mediation often helps preserve relationships between the divorcing parties. This is especially important if there are children involved, as maintaining a civil relationship can be crucial to successful co-parenting. By avoiding the adversarial atmosphere that typically accompanies court litigations, mediation can promote healthy dialogue and compromise, leading to more amicable outcomes.

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If you’re prepared to move forward and welcome Heidi as your divorce mediator, we invite you to complete the form below. Heidi is dedicated to prioritizing the best interests of both parties, with a focus on achieving a fair and mutually acceptable agreement. Her approach ensures that your needs are heard and addressed throughout the mediation process.

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Potential Drawbacks

Not Suitable for All Couples

Divorce mediation is an informal process that aims to make both spouses feel more at ease and committed to reaching an agreement. However, it might not be suitable for all couples. In cases where there is a history of domestic violence or significant power imbalances, mediation may not be a safe or effective option. Additionally, if one spouse is not willing to participate in good faith or cannot compromise, mediation might not be the best solution for their divorce process.

Compromise May Be Difficult

Another potential drawback of divorce mediation is that compromise can be challenging for some individuals. The process requires both spouses to meet in the middle and make concessions to reach a mutually satisfactory agreement. This might be difficult, especially if there are strong emotions or deeply rooted conflicts involved. In some instances, parties might struggle to let go of specific demands or be unwilling to make the necessary compromises to move forward with the mediation process.

Furthermore, divorce mediation does not always provide legal support, which might hinder spouses from fully understanding the long-term consequences of their decisions. It’s essential for both parties to be well-informed and have access to legal counsel and legal advice if needed, even if they opt for mediation without lawyers over traditional court proceedings.

Legal Implications

Divorce mediation has a few legal implications that are important for couples to understand before choosing this method. This section will explore some of the key legal aspects, such as confidentiality and court approval.

Confidentiality

In divorce mediation, confidentiality is an essential aspect of the process. This means that the entire process of discussions and information shared between the parties and the mediator cannot be used as evidence in court. 

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Divorce mediators are not allowed to disclose any information discussed during the mediation sessions. One of the primary goals of maintaining confidentiality is to create a safe space for the parties to discuss their issues openly and honestly without fear of it being used against them later in court. This trust can facilitate a more amicable and efficient resolution of the divorce.

In Alberta when you and your partner are successful in mediating an agreement, the mediator will create a document called “minutes of settlement” or a “memorandum of understanding”.

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While this document is less detailed than a full separation agreement, it may form the basis of the separation agreement, which will usually be drafted by your lawyer so that it is legally binding and can be enforced by the court.

Court Approval

Although mediation is an alternative dispute resolution process that allows couples to resolve their issues without litigation, the final agreement reached in mediation still requires court approval. 

Once the parties have agreed on the terms of their divorce, they must submit their mediated agreement to a judge for review. The judge will ensure that the agreement is fair, equitable, and in compliance with any applicable laws. If the judge approves the agreement, it will become a legally binding order. If not, the parties may need to return to mediation or proceed with a court-based divorce process. This step is crucial in formalizing the mediated settlement and ensuring that both parties rights and responsibilities are finalized.

Overall, divorce mediation is an attractive option for those looking to resolve their disputes amicably and with less expense compared to traditional litigation. Understanding the legal implications surrounding confidentiality and court approval can ensure that couples are well-prepared and informed when navigating the divorce mediation process.

Post-Mediation Considerations

Implementing the Agreement

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After divorce mediation, the mediator drafts a written agreement reflecting the couple’s decisions. This document, known as a Memorandum of Understanding (MOU), outlines the terms agreed upon by both parties. Some important steps in implementing the agreement include:

  • Review: Both spouses should carefully review the MOU to ensure it accurately reflects their understanding and agreements made during mediation.
  • Legal advice: It’s mandatory that each party consults with independent legal counsel to review the agreement before signing and proceeding to filing.
  • Court approval: Once both parties are satisfied with the MOU, it is submitted to the court for approval. The judge reviews the document and checks for fairness and compliance with relevant laws.

Modifications and Changes

Post-mediation, it’s possible that circumstances may change for one or both spouses, necessitating modifications to the agreement. The process includes:

  • Mutual agreement: If both parties agree on the necessary changes, they can amend their agreement accordingly. It’s essential to document any changes in writing and submit them to the court for approval.
  • Mediation or negotiation: If the parties cannot agree on modifications, they can return to mediation or seek legal advice to resolve the issue. As with the original MOU, any changes must be documented and submitted to the court for approval.
  • Court intervention: In some cases, the court may need to intervene to address changes in circumstances or enforce terms of the agreement that are not being followed. Disobeying court orders can result in legal consequences, so it’s essential that both parties adhere to the terms of their agreement.

Remember, effective communication and cooperation between both parties can help with the smooth implementation of the agreement and addressing any necessary modifications or changes moving forward.

Frequently Asked Questions

How much does mediation typically cost?

In general, the cost of divorce mediation varies depending on factors such as the complexity of the case and the mediator’s hourly rate. It is also important to understand the mediator’s background – that is, if you are in legal assisted mediation or using a mediator who is not a lawyer.  It’s difficult to pinpoint an exact price, but mediation is most often a less expensive alternative than going to trial.

Can I find free divorce mediation services?

Although it may be more challenging to find, free divorce mediation services do exist. Some non-profit organizations and state-sponsored programs offer mediation at little to no cost for eligible individuals. It’s worth researching local options for more information.

What are the main benefits of mediation over court?

Mediation offers several advantages over court proceedings. It’s usually less expensive and more flexible, allowing couples to negotiate their own terms. Additionally, mediation can help preserve relationships since it fosters communication and cooperation.

What are the potential downsides to mediation?

Some potential downsides to mediation include a lack of enforcement power and the possibility that the process may not result in a fair outcome, especially if one party is more dominant or knowledgeable. It also might be an opportunitiy for one party to use power over the other, or drag out the process. This can occur in mediations that are not legally assisted or with mediators who are not lawyers. In some cases, court intervention may be necessary to resolve certain issues.

What are the steps involved in the mediation process?

The entire mediation process generally involves the following steps:

  1. Selecting a mediator
  2. Preparing for the initial session
  3. Mediation Sessions 
  4. Negotiating and discussing key issues
  5. Reaching a marital settlement agreement
  6. Legal Finalization of the divorce

It’s important to note that each mediation process may vary depending on the specific circumstances of the case.

How does the mediation process differ by location?

The mediation process can differ by location due to varying regional laws and regulations that govern divorce proceedings. Local customs, practices, and availability of mediation services may also impact the process. It is critical to research and understand the specific rules and requirements for your jurisdiction as well as understanding who are the mediator(s) you are considering and what their backgrounds are. 

Divorce mediation in Alberta, Canada, 

has some unique characteristics that set it apart from mediation processes in other jurisdictions. Here are a few key features:

1. Voluntary Process: In Alberta, divorce mediation is entirely voluntary. Neither party can be forced to participate in mediation, and both parties can withdraw from the process at any time. 

2. Mandatory Parenting After Separation (PAS) Course: If children are involved, Alberta requires parents to complete a Parenting After Separation (PAS) course before they can proceed with mediation. This course educates parents about the impact of separation and divorce on children and promotes strategies for cooperative co-parenting.

3. Family Mediation Services: The Alberta government offers free Family Mediation Services to qualifying families going through a divorce or separation. These services help resolve issues around parenting time and responsibilities, child support, spousal support, and property division.

4. Collaborative Divorce: Alberta is known for promoting “collaborative divorce,” a process in which each party retains a lawyer trained in collaborative law. Both parties and their lawyers sign an agreement committing to resolve all issues without going to court. If either party decides to go to court, both lawyers must withdraw from the case.

5. Legal Requirement to Consider Mediation: Alberta has a unique legal requirement that before going to court, parties involved in family law disputes must consider mediation and other dispute resolution processes. While they don’t have to go through with it, they are required to at least explore these options.

6. Inclusion of Family Professionals: The divorce mediation process in Alberta often includes other professionals such as legal counsels, child specialists, financial specialists, and divorce coaches to support the parties through the emotional and practical aspects of the process. This is known as an interdisciplinary approach to divorce mediation.

Remember that while these points provide an overview, it’s always best to consult with a legal professional when dealing with divorce and separation matters, as they can provide advice tailored to your specific situation.

For more blog’s related to divorce support, relationship communication and co-parenting topics, visit our Blog Page

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If you or someone you know choose divorce mediation or is facing separation or divorce and don’t know where to begin, that’s where I can help. I act as emotional support, thinking partner and guide for you, so you can retain your dignity, find clarity and feel hopeful for the future. To learn more, visit our certified divorce coaching page. 

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