Are you and your ex considering family mediation to settle your separation? Learn about the main steps in the process so you know what to expect. Keep in mind, if you can’t reach an agreement through mediation, there are other options.
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1. Make sure mediation is safe
Your mediator is responsible for ensuring that mediation is safe for you and your ex. Before starting mediation, you can ask them to assess whether mediation is appropriate in your situation. The Association des médiateurs familiaux du Québec (Quebec family mediators association) recommends using the DOORS questionnaire for this evaluation. You can ask your mediator to use it.
The mediator can propose ways to adapt mediation to your specific needs, for example, doing online mediation or allowing a support person to be present. The mediator can also refer you to other processes for settling separation issues that may be a better fit for you.
2. Identify issues to settle and sign a mediation contract
At your first session, the mediator must explain their role, the different steps in the mediation process, and you and your ex’s responsibilities during mediation.
Then the mediator will help you choose what issues to settle through mediation.
3. Discuss and negotiate to find solutions
During the mediation sessions, the mediator will help you and your ex try to find solutions. You might need several sessions to come to a satisfactory agreement.
During your mediation sessions, the mediator will help you communicate and listen to each other. In particular, the mediator will help you:
- express and understand each other’s needs,
- consider your children’s needs,
- identify issues to settle,
- find common goals,
- explore possible solutions, and
- choose solutions adapted to your needs and your children’s needs.
The mediator won’t choose solutions for you and won’t give you legal advice. But the mediator will give you legal information to help you find solutions that meet your needs and follow the law. The mediator will also share ideas for different family arrangements used by other ex-couples in similar situations.
Generally, mediation is confidential. In general, what is said, written down or done in mediation can’t be shared with the court. This applies to the mediator, but also to you and your ex. But there are exceptions. For example, you and your ex can agree to share some information from mediation with the court. Also, your mediator is required to share any information suggesting there’s a real danger to someone’s security or life.
You or your ex can decide to stop mediation anytime. The mediator can also decide to stop the mediation if there’s no chance of success or if there’s a risk that mediation will cause a participant serious harm. In either case, the mediator will refer you to another process for settling your separation issues.
4. At the end of mediation: Write a “summary of agreements”
When you’re done with the mediation sessions, your mediator will prepare a document called a “summary of agreements.” This document describes the solutions that you and your ex worked out during mediation. Generally, the summary of agreements is confidential.
Important! The summary of agreements is not a contract. It’s up to you and your ex to decide whether you’ll commit to following the solutions found during mediation.
5. After mediation: Commit to respecting the solutions found during mediation
There are different ways for you and your ex to commit to respecting your mediation solutions. It can be helpful to speak with a lawyer or notary to ensure you’re making an informed decision and that the agreement is satisfactory.
6. Get the court to approve your signed agreement
You and your ex can ask the court to approve your signed written agreement. This is called an “application for homologation.” Before approving your agreement, the court will check whether each ex agrees with its contents, whether it’s fair, and whether it’s in the best interests of the children.
An agreement approved by the court has the same value as a court judgment, so if there’s a dispute, it may be easier to enforce than a signed agreement that hasn’t been homologated.
7. What if you can’t reach an agreement during mediation?
If you and your ex can’t reach an agreement during mediation, you have several other options. You can try collaborative law, ask the court to settle your separation issues, or go to conciliation with a judge.
If you start a process other than mediation, you and your ex can always pause proceedings to try to discuss a problem, return to mediation, or come to an agreement on your own.
Collaborative law
You can try to settle your separation issues through collaborative law. Collaborative law may be more expensive than mediation. In collaborative law sessions, you and your ex meet to negotiate in the presence of your lawyers. Your lawyers advise you on your rights and help you work together to find acceptable solutions. This is an option for ex-couples who want to separate without going to court.
Ask the court to settle your separation issues
You can ask the court to settle any issues that you and your ex have not resolved through mediation. The court you can go to depends on the legal status of your relationship.
Conciliation with a judge
If you’re in a civil union or parental union, and have filed an application with the Unified Family Tribunal (UFT), you can participate in a conciliation session before going to trial. Conciliation is a confidential meeting with a judge who helps you find solutions that meet your needs. Parents who reach an agreement through conciliation can ask the judge to approve it immediately. If not, the court can hold a mini-hearing the same day to decide on any unresolved issues.