Family mediation is a way for couples to settle issues arising from a breakup without having to bring the dispute to court. A neutral mediator helps the couple reach a fair agreement on the issues submitted to the mediator.
Mediation is . . .
a way to help couples agree on these issues:
- custody of their children
- child support
- support payments to one of the spouses, if they were married
- division of their property
It is usually a voluntary process: either spouse can refuse to participate in mediation or end the mediation sessions at any time without giving a reason.
Divorce: Vocabulary Change in the Law
Since March 1, 2021, the Divorce Act no longer uses the terms “custody” or “access”. The law now uses the term “parenting time” to describe a divorced parent’s relationship with a child of the marriage. For more information, see our article Divorce: What Is “Parenting Time” and What to Do When Moving.
Mediation for couples without dependent children
From February 18, 2021 to June 30, 2022, a pilot project by the Quebec government offers 3 hours of free mediation with an accredited mediator to couples without dependent children. This program is open to couples who are married or in a civil union. It can help them decide how to divide family and matrimonial property. This program is also available to common-law couples who had signed a contract or who have property that must be divided.
Mediation is not . . .
- psychological help
- couples therapy
- a way to save the marriage
Also, mediation is not for everyone. For example, experts don’t recommend family mediation if either spouse is in one of these situations:
- is a victim of family violence
- has a mental illness
The mediator helps the couple reach a fair agreement on the subjects discussed during mediation.
To do this, the mediator has these responsibilities:
- make sure both spouses have a chance to explain their needs and wishes
- make sure everyone is respectful and both spouses are treated equally during the mediation sessions
- help the couple put their children’s needs first
The mediator cannot do these things:
- make decisions for the couple (because mediators are not judges)
- represent one of the spouses
- take one spouse’s side
- give legal opinions
The mediator can do these things:
- end the mediation at any time if the session is not going well
- suggest that the spouses meet with a legal professional if they need a legal opinion on one of the topics discussed
- give general legal information
Preparing for mediation
To prepare for mediation, the couple can
- meet with a lawyer or notary individually to learn about their rights and obligations,
- gather all documents that might be useful to them or to the mediator, such as tax returns, and
- write down what they disagree on and why.
The three steps in the mediation process
The spouses are not allowed to have a lawyer with them during the mediation sessions. However, they can meet with a lawyer or notary before, during or after the mediation process to get legal advice.
Mediation usually involves three steps:
During the evaluation step, the mediator does the following:
- explains the mediation process and its role to the couple
- evaluates the situation of the couple and their children
- helps to decide which topics should be discussed
- plans the next mediation sessions
- asks the couple to sign a mediation contract, which outlines the rules for the mediation
In the sessions that follow, the mediator tries to help the couple agree on the specific points raised.
Anything said or written down during mediation is confidential and can’t be repeated in court if mediation doesn’t work.
3. Preparation of a report on points of agreement
After the sessions are over, the mediator writes a report on all the points the couple agrees on.
- is usually a list of points on which the couple agrees
- is not very detailed or specific
- does not oblige the couple to follow it because it’s not a contract or a court decision
The couple should not sign the report. If they do, it could be considered a contract that they are forced to follow. It is not a good idea to sign the report because it is not written in a way that protects them or prevents misunderstandings.
This is why the mediator recommends that the spouses consult a lawyer or notary to convert the report into a draft agreement, which will later be filed in court and eventually become a decision of the court.