Mediation and collaborative law
Since 1997, family mediation has transformed the portrait of family law in Quebec.
It is from then on that the Government of Quebec has chosen to financially support all the separating couples, whether they are married or common-law partners, and who have dependent children even if they have more 18 years old. The program put in place by the Government of Quebec aims first and foremost to reduce conflicts and to make the parties more responsible, assuming that it is the parties themselves who are most often in the best position to find a solution. their differences when they benefit from the valuable assistance of an accredited family mediator. The mediation approach, which first seeks to find a solution to a conflict, is now part of the habits of civil society in Quebec when a separation occurs.
Nowadays, family mediation is carried out either by mediators who agree to be paid according to the government tariff or by mediators at their own hourly rate. Clients will often be referred to us by a colleague, a friend or a cousin who themselves have used the mediation process. Several family law lawyers have become mediators and their practice will now include two or three aspects: court representation, mediation, and collaborative law. Lawyers who focus their practice on court representation have also learned to support their clients who wish to reach an agreement during the mediation process to help them reach their goal.
Process and features
But how does it work? In general, the mediation practiced in Quebec is called “integrative”, that is to say based on the reasoned negotiation mode developed by the authors Fisher & Ury Fisher.1 The so-called “evaluative” mediation can also be used, as well as transformative mediation, these two approaches being themselves part of the process of several mediators who practice integrative mediation.
The mediator acts as a neutral and impartial third party to help the parties prepare a work plan, identify their points of agreement and points of disagreement, and set a timeline for topics to be discussed based on client priorities. .
The discussions should be frank and honest, as if the parties were under oath before the Court and the mediator will ask each of them to act with transparency in the exchange of information and documents necessary for the understanding their situation, including the discussion of the financial consequences of separation.
The mediation process is confidential and nothing that was said or written during the mediation process will be able to be proven in court unless it is to establish the occurrence of an agreement as decided by the Supreme Court of Canada in 2014 in Union Carbide Canada Inc. v. Bombardier Inc.2. The parties and the mediator, however, have agreed in writing, on the occasion of the signing of the contract of mediation, that the exchanges and writings will remain confidential even to establish the existence of an agreement that occurred in mediation. It will also be more prudent to provide for the non-compellability of the mediator to the contract of mediation.
Choice of mediator
It will be helpful to know the mediator’s approach that will be recommended to clients. In addition, it is preferable for each party to speak briefly with the mediator before the first joint session. The parties will then be able to discuss with the mediator what they know about mediation, where it is more difficult for them to discuss with their ex-spouses and their perceptions of each other’s reactions when discussions are more difficult. These pre-interviews will provide the mediator with a preliminary overview of the appropriate approach to assist that particular couple, and allow them to provide basic information on the process. The mediator may also suggest that during the process, the parties be accompanied by their financial advisors, lawyers or experts, as permitted by article 6 of the new Quebec Code of Civil Procedure.
Mediation and collaborative law
The mediator may also be called upon to intervene to help the collaborative law process that is facing a stalemate. He will then team up with the collaborative lawyers and the clients, putting the know-how of the professionals present at the service of these clients who will have asked them to help them to get along.
About two-thirds of the 896 family mediators accredited in Quebec are lawyers. Family mediation is undoubtedly an example of a professional and effective service offer that lawyers have learned to offer to litigants and whose litigants have learned the benefits, particularly in terms of financial and emotional costs, delays, confidentiality and control of the result. An acceptable compromise on both sides is what is known as a win-win solution; The reduction of costs and delays thus favors citizens’ access to justice and, consequently, their interest in using the services of solicitors in solution.
Are there ways to minimize the impacts of separation so that parties and their children are less affected? Yes certainly, in addition to mediation, there is another process in Quebec as a method of resolving disputes during a separation, namely collaborative law. Since 2003, this approach in family law has started in Quebec and several lawyers already practicing in family law have been trained to put this process into practice, in order to respect all the parameters necessary to achieve the objectives. objectives of the parties to settle their dispute out of court. Collaborative law was introduced in 1990 in Minnesota by Stuart Webb, an American lawyer, and has also flourished in other provinces of Canada as well as in Europe since that time.
Collaborative law is a process of conflict resolution without the threat of recourse to the courts since it is done before the institution of judicial proceedings and it meets the needs of the family that require constructive assistance during the break family. This process ensures that the skills of the lawyers and the energy of the parties are devoted to finding the best solution to the disputes of the parties. The voluntary participation of the parties in a series of meetings with the assistance of their respective lawyers with specialized training is characterized in particular by negotiation on the basis of interests, a limitation of the lawyer’s mandate to the collaborative law process and an obligation. to provide by the parties, all information and documents to negotiate a fair and equitable agreement.