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Family Law Mediation
Family Law Mediation Definition
Family mediation is an alternate way for couples to resolve family legal matters outside of the court process. In traditional mediation, the couple has one neutral mediator who should have specialized training. A mediator provides information to the couple regarding the law and the legal process, but does not represent or advocate for either person. The mediator assists the couple in exploring options, but does not make decisions for them. Mediation works especially well for couples who have low conflict. Not all mediators are lawyers.
Collaborative law is a newer alternate dispute resolution process available in many Canadian provinces and is particularly useful in family law matters. In this process, each person has their own lawyer who represents only their client. The lawyers have specialized training in collaborative law, interest-based negotiation and/or mediation. The clients and their lawyers agree by written contract to stay out of the court system to resolve their disputes. The couple and their lawyers attend meetings together to discuss their interests, define issues, generate options and determine solutions. Voluntary disclosure, particularly about financial issues that is satisfactory to the clients and their lawyers, is important to its success. Collaborative lawyers are obliged to explain the law to their clients and ensure that they understand their rights and obligations. The meetings, the minutes of the meetings, and the disclosure received cannot be disclosed if the matter proceeds to litigation. When a couple successfully negotiates a resolution, the lawyers prepare and the couple signs a formal written agreement. If the couple agrees, uncontested court matters such as divorce can be dealt with by their collaborative lawyers. If the couple cannot reach an agreement on some or all issues, the lawyers and their firms must withdraw and cannot act for their client in court regarding any matters dealt with in the collaborative process.
Both mediation and the collaborative process require that those involved agree to the process. In both mediation and the collaborative process, the couple has greater control of the cost, the timing, and the result. Mediation and the collaborative process can be less adversarial and can minimize the negative emotional consequences of litigation. The processes are private and confidential and usually take less time on average to reach a conclusion than the court process. Both mediation and collaborative law try to assist the couple to communicate in a more constructive and productive manner. The goal with both processes is to reach a resolution with each person’s participation. This is considered more desirable than a court-imposed resolution and may have greater chance of long-term compliance.
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