What is Family Law Mediation/Arbitration in Alberta?

Spectrum Family Law is pleased to announce that their senior family law lawyer Peter Graburn has now expanded his family law practice to provide Mediation and Mediation/Arbitration services across Alberta. Peter now brings his over 35 years of experience in high-profile, high-conflict, complex litigation to help clients resolve their family law disputes in a more private, confidential and cost-effective manner.

We know resolving family law disputes is hard. Separation and divorce can often involve high emotions, financial stress and lots of numbers about family property and debt. But the process for resolving these disputes doesn’t have to be hard, or expensive. There are a number of processes aside from Court to resolve family law disputes. Two of these processes are Family Law Mediation and Family Law Mediation/Arbitration. But what is Family Law Mediation and Family Law Mediation/Arbitration, and how are they different?

What is Family Law Mediation?

Family Law Mediation is where separating or divorcing spouses jointly retain a family law Mediator (preferably a family law lawyer with mediation training) to help them resolve any disagreements they may have regarding any number of issues, including:

• primary care and parenting of children;
  
• financial support of children (child support) or a spouse (spousal or partner support), and;
  
• division of family property and debt.

The Family Law Mediator will meet with the separating spouses in an informal, civil and respectful setting to try to assist them to come to a fair, reasonable and generous settlement of any or all of their outstanding issues. The Mediator does not give either spouse legal advice, or make the decisions regard the settlement – the spouses do. The Mediator facilitates the communication and negotiation between the spouses, and then may help the spouses set any agreements down in writing (which can then be taken to each spouse’s own lawyer for formalization and Independent Legal Advice).

Sometimes, however, even the most skilled Family Law Mediators are not able to assist separating couples resolve all their outstanding issues. In this situation, how are decisions made on these outstanding issues? The options are either Court, or Family Law Mediation/Arbitration.

What is Family Law Mediation/Arbitration?

In Family Law Mediation/Arbitration, the separating spouses retain a Family Law Mediator/Arbitrator (usually a senior family law lawyer trained in mediation) to first try to resolve any outstanding issues just as the Family Law Mediator does (above). If they are not able to do so (which is rare!), the Family Law Mediator/Arbitrator then has the authority (under the Alberta Arbitration Act and the Mediation/Arbitration Agreement) to make a final and binding decision on any outstanding issues the spouses have agreed to put over to the Mediator/Arbitrator (just like the Court). Again, the Mediator/Arbitrator does not give legal advice to either spouse. The Mediator/Arbitrator and the spouses set and conduct a more formal process for resolving the outstanding issues, and the Mediator/Arbitrator issues an Award deciding on those issues (which Award can then be filed with the Court).

Benefits of Mediation and Mediation/Arbitration

But why is Family Law Mediation or Family Law Mediation/Arbitration a better way to resolve family law disputes on separation and divorce than through the Court? Quite simply, because it’s faster, cheaper and better:

Faster – Courts are busy, and the Court process is long and slow. The Mediation/Arbitration process can be completed and a decision issued by the Arbitrator as quickly as the spouses and Arbitrator are available;   

Cheaper – Courts tend to have a “one process fits all” approach: formal, procedural and document-heavy. In Mediation/Arbitration, the process is decided by the spouses and the Mediator/Arbitrator themselves, and can be as brief or detailed as they agree to fit their particular situation (as long as it is procedurally fair to both spouses), significantly reducing costs; and

Better – there are many ways Family Law Mediation and Family Law Mediation/ Arbitration are better than resolving family law disputes in Court, including:

• Involvement and Control – spouses have very limited control over the Court process. In Family Law Mediation/Arbitration, they have very direct input in choosing the decision-maker, process and final outcome of the process (although the Arbitrator will make the actual final decisions);
  
• One Decision-Maker – spouses may see many different Justices as their matter proceeds through Court. In Family Law Mediation/Arbitration, one person hears and (may have to finally) decide all issues in the matter, having a better understanding and able to get more involved in all aspects of the dispute between the spouses;
  
• Creativity – Court decisions may often be a “winner take all” solution. In Family Law Mediation/Arbitration, spouses may be able to work with the Mediator/Arbitrator to craft an agreement (or even a decision) that is more practical, creative (ie. thinking ‘outside-the-box”) and mutually beneficial (ie. “win-win”) to their particular situation than the Court could impose; and
  
• Private and Confidential – unlike Court.

So, is Family Law Mediation or Family Law Mediation/Arbitration the only way to resolve family law disputes on separation and divorce – no. Family Law Mediation and Mediation/Arbitration are voluntary processes – if both spouses do not agree to use these processes, the only alternative to resolve their family law disputes is Court. In the writer’s opinion, they are the better way.

About Peter Graburn

Peter has broad experience in the areas of civil rights, aboriginal law and family law, in both mediation and advocacy roles. He has always worked hard to ensure that his clients are seen, heard and well spoken for. Peter is a skilled and effective practitioner, able to assist his clients resolve their differences in a practical, respectful, and cost-effective manner.

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