Family mediation is one alternative to court as a way to resolve conflicts that arise following a separation.

Family mediation is a process where an impartial mediator helps the ex-spouses negotiate a fair agreement. It requires the cooperation of both parties. Aided by the mediator, they must be flexible, detached, civil, willing to listen, and respectful. Both participants must show good faith and be prepared to provide all the necessary information and documentation.

No. Mediation itself is optional, but attendance at an information session about mediation is mandatory. Under the law, the court will not hear any applications or claims where the parties' interests and those of their children are engaged unless they first attend the information session.

There are two types of information sessions:

• group information session: both parties must register with the Family Mediation Service of the Superior Court at the courthouse. It is not necessary for both ex-spouses to participate at the same time;
  
• couple information session: both parties can choose a mediator from amongst the certified professionals and participate together in a private mediation information session.

Ex-spouses are not obliged to use mediation after they have attended the information session.

An ex-spouse may be exempted from the information session for serious reasons. For example, mediation may not be recommended in the following situations:

• an imbalance of power exists between the ex-spouses;
  
• one party’s disability or physical or mental condition prevents him or her from participating in mediation;
  
• mediation is impractical because the ex-spouses live far apart.

Family mediation is not recommended if you are a victim of spousal abuse or if your ex-spouse is trying to pressure you or force you into an agreement.

If you have serious grounds for not attending the mandatory information session, you must contact a certified mediator and explain your reasons to him. Your reasons will remain confidential. The mediator will give you a “certificate of exemption” and will send a copy to the courthouse.

If you fail to attend the mandatory information session without obtaining a certificate of exemption based on serious reasons, you might have to pay all of the court costs related to your application before the court.

If you have dependant children, you are entitled to a maximum of six free family mediation sessions under the following circumstances:

Voluntary mediation

After attending the information session about mediation (and even before then!), you and your ex-spouse may agree that mediation is the best way to resolve conflicts related to your separation. In this case, simply contact the certified mediator of your choice.

Court-ordered mediation

When an application concerns the parties’ interests and that of their children, the court may decide to suspend proceedings and order the ex-spouses into mediation. The mediator is chosen by the ex-spouses themselves or appointed by the Family Mediation Service of the Superior Court. The court's decision does not force the parties to reach an agreement in mediation.

If you have dependant children and you are facing a break-up (separation, divorce, marriage annulment, dissolution or annulment of a civil union) you have the right to six free family mediation sessions, including the mandatory information session. This is true whether you are married, in a civil union, or in a de facto union.

You are only entitled to three free sessions if you simply want an existing order varied (for example, if you want custody and access to be reviewed or support to be adjusted).

If you wish to continue mediation after the free sessions have been completed, you must pay the mediator’s fee of around $95 per session.

Mediation is free only if your mediator is certified and willing to participate in the government’s family mediation program. If not, you must pay the cost of mediation as agreed upon with the mediator.

The term “mediator” does not refer to any specific profession. Anyone can act as a mediator between people in conflict, even if they are not a member of any professional association.

However, if you want to take advantage of free family mediation, you have to use a certified mediator. Only members of the following professional orders can become certified mediators:

• Barreau du Québec (lawyers);
  
• Chambre des notaires (notaries);
  
• Ordre des conseillers et conseillères d’orientation du Québec (guidance counsellors);
  
• Ordre des psychologues du Québec (psychologists);
  
• Ordre des travailleurs sociaux du Québec (social workers).

Employees of institutions operating child and youth protection centres can also become certified mediators.

To obtain certification, mediators must undergo proper training, have at least three years of experience in their profession, and have successfully mediated a given number of disputes under the supervision of a certified mediator.

Courthouses usually have a list of lawyers who are certified mediators.

You can also contact professional associations whose members can become certified mediators, as well as the Quebec Youth Centres (Centres jeunesse).

Family mediation generally includes three steps: assessment of the situation, negotiation between the parties, and the drafting of a summary of the agreements.

In the first session, the mediator explains the mediation process and his role to the ex-spouses. He then evaluates the situation of the parties and their children. The mediator helps to identify issues requiring discussion, and he sets a schedule for future mediation sessions. Generally, both ex-spouses will be asked to sign a contract detailing the conditions and goals of the mediation.

In the following sessions, the mediator tries to resolve specific areas of disagreement. The parties are asked to consider the various options and together choose the most suitable one.

Once the sessions are completed, the mediator drafts a report and summarizes the final agreement. The mediator must remind the parties that this report is not a judgment.

Either ex-spouse can stop mediation at any time, without having to give a reason. The mediator himself must end the mediation if he believes it would be counterproductive to continue.

The mediator’s role is to help ex-spouses communicate, express their feelings, and resolve their conflicts, all in an atmosphere of respect and trust.

A mediator, however, is not a therapist, an arbitrator, or a lawyer and he does not represent either one of the parties. He cannot give you a legal opinion regarding your particular situation.

In fact, a mediator must recommend that you see a lawyer as soon as he believes it is necessary for you to do so. As such, it is normally a good idea to consult a lawyer both before and during mediation to ensure you are properly informed about your rights.

No. Lawyers acting as family mediators have the same role to play as any other mediator who is a member of another professional order. Consequently, during the mediation process, she cannot act as legal counsel even if qualified to do so.

After mediation is completed, should you reach an agreement, your mediator, if also a lawyer, can help both you and your ex-spouse take the necessary steps to homologate the agreement. In such a case, she switches from her role of mediator to become your lawyer. Beware, however, that not all professionals involved in mediation approve of this practice. For some, it is considered unacceptable for a mediator to represent the parties as a lawyer. It is up to you to discuss this matter with the lawyer in question and to make your own decision.

In addition to consulting a lawyer, you may wish to do the following:

• Gather all the documents that may be useful to you or the mediator;
  
• Write down all the issues on which you and your ex-spouse disagree and the reasons why;
  
• Prepare to cooperate as much as possible and to actively participate in the mediation.

One of the advantages of mediation is that it is entirely confidential.

Your reasons for seeking a certificate of exemption or terminating mediation are confidential. Anything that is said or written during mediation itself is also confidential.

This means that you can express your feelings and concerns freely, without worrying that any of it will be repeated in court later on if mediation does not work out.

If mediation is successful, the mediator writes a summary of the agreements reached. The summary of the agreements is confidential just like the statements that were made or written during your mediation sessions.

The mediator usually writes this document in point form. This is because the summary of the agreements is just that: a “summary”. Normally, you do not sign it. The mediator will suggest that you consult a legal professional so that she can turn this summary of agreements into a more formal agreement that will be reviewed by the court.

Why shouldn’t you just rely on the summary of the agreements? Because if you decide not to take any legal action and to treat the summary of the agreements as a contract between you and your ex-partner, you run the risk of having nothing detailed or formal (signed by you and approved by the court) to rely on if you or your ex-partner change your minds about what’s in this document or what it means.

For example, the summary of the agreements may say that you have custody of your child and your ex-partner has access rights every second weekend from Friday to Sunday. It may not answer the following questions: What time should your son be picked up on Fridays? By whom? What time should he be returned? Does your ex-partner return your son to you or do you have to pick him up at her place? What if Friday turns out to be a ped day or a holiday? In those situations, it is very easy for two ex-partners to have very different recollections of what was said in mediation.

In addition, if you choose to treat the document as a contract, its confidentiality may no longer be guaranteed in case of a dispute between you and your ex-partner.

Be careful: if you sign the summary of the agreements, you may turn it into a formal agreement that you will have to follow. However, it may be insufficiently detailed thus creating the practical problems discussed above.

The steps that you must take entirely depend on your personal situation. Different people undertake mediation at different points in time: at the very beginning of the dispute before any legal paperwork has begun, after having filed legal papers or even after the judge has started hearing the case.

What’s common to all of these situations is that the legal professional will have to turn the summary of the agreements into a detailed agreement that will be signed by you and your ex-partner.

Legal papers have not been filed

• If you agreed on all of the issues between you and your ex-partner, you may file your legal paperwork jointly and ask the judge to turn your agreement into a judgment. For information about joint divorces, consult our Infosheet entitled The joint application for divorce.
  
  
• If you agreed on some of the issues between you and your ex-partner but there are still outstanding issues, then one of you can take legal action against the other on the outstanding issues. For example, you may agree about the custody of your children and child support, but disagree with your ex-partner about how to split your property. Your lawyer or your ex-partner’s lawyer will prepare and have you sign a “partial agreement” on custody and child support using the summary of your agreements. Then, your respective lawyers will do the paperwork to ask the judge to make your “partial agreement” part of his judgment and will outline the remaining issues between you that the judge needs to decide (how to split the property, in our example). You will go to court and present your evidence on these remaining issues.

Legal papers have already been filed but the case isn’t before a judge yet

Your lawyer and your ex-partner’s lawyer will have to decide whether they will change (amend) the legal papers that were filed, withdraw the legal papers that were filed and/or write new legal papers up. The important thing is that they will file the agreement into the court record asking the court to turn it into a judgment and will make sure that the judge is aware of outstanding issues, if any.

You are already in front of the judge

The judge will generally read the summary of the agreements or the agreement that the lawyers prepared from the summary. Then, the judge will instruct the lawyers on the steps to follow so that he can make the agreement part of his judgment. If the agreement does not settle all of the issues, the judge will hear each party’s evidence on the outstanding issues or, if time does not permit, will send the parties to get a new date for another hearing.

No. The judge has the power to change your agreement or to send you to renegotiate certain clauses if he believes that the agreement is not in the best interests of your children. This can happen if, for example, you decide that there will be no child support paid although the parent who is supposed to pay can afford it.

The judge must also check that the agreement that you reached was made freely, each person involved having sufficient knowledge of his or her rights. In case of doubt, the judge will wish to discuss with you or with your lawyers why you chose to settle your agreement in that particular way.

If mediation fails, you will have to follow the normal procedures to have the court settle your case. The same is true if mediation appears to succeed, but later on you or your ex-spouse change your mind and refuse to sign the draft agreement or acceptance. If your mediator is a lawyer, she cannot represent either you nor your ex-spouse during these proceedings.