“Family mediation” is a friendly way to try to settle some or all of the consequences of a breakup. In mediation, an impartial mediator helps spouses/partners reach a fair agreement on issues such as custody, child support, spousal support and the division of property.

Spouses/partners can consult a legal professional before, during and after the mediation process to get legal advice. However, the legal professional cannot attend mediation with them.

Mediation is not counselling or therapy. A mediator does not try to bring the spouses/partners back together.

For mediation to work, the people participating must cooperate. With the help of the mediator, they must be flexible, detached, civil, willing to listen and respectful. They must demonstrate good will and be prepared to provide all the information and documentation required by the mediator.

Either spouse/partner can put an end to mediation at any time.

A mediator’s role is to help a couple reach a fair agreement on issues presented to the mediator.

To do this, the mediator must ensure that the spouses/partners have a fair chance to express their needs and wishes, in a respectful and equal way. She must also help them consider the needs of their children.

A mediator is not a judge. She cannot make a decision for the couple.

She must remain impartial. She cannot represent one of the spouses/partners or take sides.

Although she is allowed to give very general legal information, a mediator can never give legal advice.

For example, Isabella, Jacques and the mediator are discussing child support. The mediator can say that there is a form to fill out to figure out the amount of child support owed. But the mediator cannot advise Jacques to pay less than the amount calculated using the form just because he has a lot of debts.

The mediator can suggest that the spouses/partners consult a legal professional if they need legal advice about some or all of the issues discussed.

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 members of a professional order.

However, if you want to take advantage of free family mediation or get a mediator’s report (discussed below), you have to use a certified mediator. Only members of these professional orders can become certified mediators:

• Barreau du Québec (lawyers)
  
• Chambre des notaires (notaries)
  
• Ordre professionnel des conseillers et conseillères d’orientation du Québec
  
• Ordre des psychologues du Québec (psychologists)
  
• Ordre professionnel des travailleurs sociaux et des thérapeutes conjugaux et familiaux du Québec (Only social workers can become mediators.)
  
• employees of institutions operating Youth Protection Centres

To get certified, mediators must complete training, have at least 3 years of experience in their profession, and successfully mediate a certain number of disputes under the supervision of a certified mediator.

No. Mediation itself is optional, but in most cases, attendance at an information session about mediation is obligatory.

The court will not hear any applications or claims where the couple’s interests and those of their children are involved unless they first attend the information session.

There are two types of information sessions:

1. group information session: the person who wants to attend a group session must register with the Family Mediation Service of the Superior Court at the courthouse. It is not necessary for both spouses/partners to attend the same group session.
   
   
2. private information session: the spouses/partners choose a certified mediator and attend a private mediation information session together.

At the end of the information session, a copy of the attendance report is sent to the participants. The report proves that the spouse/partner attended the information session. If the case goes to court, the court will require this document before allowing the spouses/partners to set a court hearing date.

If you do not attend the mediation information session, you might be required to pay all of the costs related to your application before the court.

No. A spouse/partner may be exempted from the information session for serious reasons.

For example, mediation may not be appropriate in the following situations:

• An imbalance of power exists between the spouses/partners.
  
• One person’s disability or physical or mental condition prevents him or her from participating in mediation.
  
• Mediation is impractical because the spouses/partners live far apart.

Experts generally do not recommend family mediation where one of the spouses/partners is a victim of spousal abuse or is trying to pressure the other 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 her. Your reasons will remain confidential.

The mediator will give you a copy of her report confirming that you cannot attend the family mediation information session for a valid reason.

In general, you don't have to attend an information session about mediation if you have already attempted mediation with your spouse/partner on the same issues.

If mediation is unsuccessful, your mediator will give you a copy of his report to give to the court.

However, there are no absolutes and, depending on your situation, the court might decide that you do have to attend the information session or get an exemption.

If you have dependent children, you are entitled to a certain number of free family mediation sessions paid for by the government. If you wish to continue mediation after the free sessions have been completed, you must pay the mediator’s fee on your own.

Even if you have children, 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 mediator can tell you if her fees are covered by the government.

You are entitled to attend 6 free family mediation sessions if you have dependent children. If you attended the mandatory information session, you only have a right to 5 free family mediation sessions.

If you are returning to court to change an existing judgment or agreement (or to challenge an attempt by your former spouse/partner to change an existing judgment or agreement), you are only entitled to 3 free family mediation sessions (including the mediation information session).

Courthouses usually have a list of certified family mediators.

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

Finally, Justice Québec has an online research tool to help you find a family mediator.

Family mediation generally includes 3 steps:

1. assessment of the situation
   
2. negotiation
   
3. drafting of a summary of the agreements

1. Assessment of the Situation
   
   In the first session, the mediator explains the mediation process and her role to the spouses/partners. She then evaluates the situation of the couple and their children.
   
   The mediator helps identify the issues that need to be discussed, and sets a schedule for future mediation sessions. She asks the spouses/partners to sign a contract detailing the conditions of mediation.
   
   
2. Negotiation
   
   In the following sessions, the mediator tries to resolve specific areas of disagreement.
   
   
3. Drafting of a Summary of the Agreements
   
   When the sessions are finished, the mediator writes down any agreements reached in a document sometimes called “summary of the agreements”.
   
   She must remind the couple that this document is not a judgment.

In addition to consulting a legal professional, you might want 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 disagree with your spouse/partner and the reasons why.
  
• Prepare to cooperate as much as possible and to actively participate in the mediation.

No. Mediation is entirely confidential.

Anything said or written during mediation is confidential and cannot be repeated in court later if mediation fails. This allows spouses/partners to freely express themselves.

If mediation fails, you can choose to go to court to get a judgment settling the issues you don’t agree about.

If your mediator is a lawyer, she cannot represent either of you at court.

If mediation is successful, the mediator writes a summary of the agreements reached. The summary of the agreements is confidential, just like the statements 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? Because if you decide not to take any legal action and to treat the summary of agreements as a contract between you and your spouse/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 spouse/partner change your minds about what’s in this document or what it means. For example, the summary of agreements might say that you have custody of your child and your wife has access rights from Friday to Sunday every second weekend. It might not answer the following questions: What time should your son be picked up on Fridays? Who will pick up your son? What time should he be returned? Does your wife 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 easy for spouses/partners to have very different recollections of what was said in mediation.

Also, if you choose to treat the document as a contract, its confidentiality might not be guaranteed if there is a dispute between you and your spouse/partner.

Be careful: if you sign the summary of the agreements, you risk turning it into a formal agreement that you will have to follow. If it becomes a formal agreement and, is not detailed enough, this could create the practical problems discussed above.

The steps entirely on your personal situation. Different people take part in mediation at different points in time: at the very beginning of the dispute before any legal paperwork has begun, after filing 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 spouse/partner.

Legal Papers Have not Been Filed

:

• If you agreed on all of the issues between the two of you, you can 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 only agreed on some of the issues between you, then one of you will have to take legal action against the other on the outstanding issues.
  
  For example, you might agree about the custody of your children and child support, but disagree about how to split your property. Your lawyer or your spouse/partner’s lawyer will prepare and have you sign a “partial agreement” on custody and child support using the summary of the agreements. Then your respective lawyers will draw up the paperwork to ask the judge to make your “partial agreement” part of his judgment and will tell the judge which issues remain (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 spouse/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 up new legal papers. 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 any outstanding issues.

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 to go in front of another judge.

No. The judge can change your agreement if it is not in the best interests of your children.

The judge must also check that the agreement you reached was made freely, and is not unreasonable, unrealistic or illegal. In case of doubt, the judge will discuss with you why you chose to settle your disagreement in that particular way.