It is therefore very important for couples to make the best choices in order to mitigate the impact of the breakup on their families. Couples have two options: participate in the family mediation program or use the traditional process through the court system. In order to make the right decision, it is essential to be well informed about how both methods work and to choose the one that best suits your needs (financial situation, etc.).
What is family mediation?
Family mediation is a program of the Ministry of Justice of Québec that helps parents with children benefit from accredited family mediator services, free of charge for a certain number of sessions in order to make judicious and wise choices for their families.
Family mediation is an alternative method for resolving couple conflicts that requires the presence of a third party, the family mediator, in order to find compromises and avoid going to court. The goal is to find a fair agreement that meets the desires and needs of both parties as well as those of the other family members. Family mediation is not mandatory and requires the consent of both people involved. The process can be stopped at any time if either of them requests it.
Several issues can be discussed during the mediation sessions such as child custody, visiting and outing rights, child support or division of assets. This is not a marriage-saving solution or couples therapy but rather a faster and less expensive alternative to the traditional method which involves lawyers and going to court.
Mediation is completely confidential, nothing said can be used as evidence in court. It should be pointed out that in some cases the mediation process is not suitable, such as when one of the former spouses has suffered domestic violence or is mentally ill.
The role of the family mediator
The mediator manages the family mediation sessions. This role can be carried out by various professionals: notaries, social workers, lawyers, psychologists, etc.
Throughout the process, the mediator’s role is well defined:
- He/she must remain neutral and impartial. Even if he/she is a lawyer, he/she is not allowed to give legal advice or represent one of the two ex-spouses.
- He/she must present all necessary information, both general and legal, to help make decisions that are appropriate for the whole family.
- He/she must maintain a balance in the discussion in order to give both parties equal freedom of expression.
- He/she must ensure that there are no contraindications to this mediation and build a neutral ground that aims to find an equitable solution
The mediator does not make decisions for the former spouses, but may suggest that they use lawyers or other specialists if he/she feels it is necessary. He/she may also suggest solutions and enlighten the couple on other alternatives that could benefit their situation.
The mediator may also decide to stop the mediation if he/she concludes that it is not appropriate. Depending on the progress of the mediation, the mediator may either invite the parents to obtain independent legal advice to finalize the agreement or remind them of their right to terminate the mediation without prejudice.
Regulation on family mediation in Quebec
Parenting information session
In Quebec, parents with children who decide to go to court during their break-up must attend an information session on parenting and mediation. Following this session, they may decide to go to court or start the family mediation process.
Those involved must register with the family mediation service of the Superior Court of Justice two days prior to the session to receive the login instructions and the necessary documentation. This is a free session provided by two experienced mediators, specialized in the legal and psychosocial fields, that brings together several individuals who will receive, at the end, a certificate of participation. The two former spouses can therefore attend separate sessions if they want.
The purpose of this information session is to :
- Discuss the consequences of the breakup on the family.
- Clarify the family mediation process and its various legal aspects.
In some situations, former spouses are not required to attend this session:
- Victims of domestic violence who must report to a government-recognized victim support service.
- Those who have already attended.
Free mediation hours
In Quebec, a certain number of family mediation hours is offered free of charge to parents depending on their situation:
- 2.5 hours of information on parenting after a break-up
- 5 hours of family mediation to support the separation process
- 2.5 hours of family mediation if there is a need to revise a judgment or an agreement or if the couple has already benefited from family mediation services
The Ministry of Justice covers the fees of accredited family mediators for the provided number of free hours.
How does family mediation work?
What is discussed during family mediation?
In order to understand the process of family mediation, it is essential to know what points can be addressed during the sessions:
- Parental authority
- Shared custody and visiting children
- Alimony
- The division of family property and assets
- Financial support
The organization of mediation sessions
Family mediation takes place in the form of successive meetings during which both parties and the mediator are present. The couple may even agree to request the presence of two moderators. However, former spouses are not allowed to be accompanied by a lawyer during this process. They can consult one before, after or during the sessions if they need legal advice.
The different phases of family mediation
1. Situation assessment
During this first step, the mediator is responsible for explaining the entire mediation process to the couple as well as the role they will occupy throughout. He/she assesses the family situation in order to establish the relevance of the mediation and specifies the topics to be discussed in order to develop a work plan for the sessions to come. The two former spouses then sign the mediation contract which establishes its terms and conditions.
2. Analysis and negotiation
All points of disagreement will be discussed one by one during the various mediation sessions. The goal is to resolve them and reach compromises that satisfy both parties and take into consideration the needs of all the family members. The mediator will stimulate the couple’s creativity and may even suggest other alternatives if he/she considers them relevant. Different options will be analyzed in order to favor the best solutions according to the situation.
3. Preparation of an agreement report
At the end of the sessions, the mediator notes the results of both parties’ agreements in a simple document, without too much detail, listing the elements on which the former spouses have managed to agree. This summary of the agreements has no legal effect. The mediator then recommends that the couple consult independent professionals for legal advice and to understand what steps need to be taken to legalize the agreement and have it approved by the court, if they wish.
The couple can also decide to rigorously and respectfully apply the results of this mediation without approving the agreement by the court. The judgment is necessary only in case of divorce. The mediator will then send a report to the Family Mediation Service which indicates overall the points discussed during the sessions.
Benefits of family mediation
Compared to the traditional process, family mediation has several advantages:
- A lower cost considering that parents with children can benefit from a certain number of free hours
- Active participation in problem solving
- A calm and harmonious process which aims to restore an agreement between the two former spouses without confrontation in court
- Empowerment of parents who share a family plan that prioritizes children interests
- Total freedom in decision-making which gives a lot of flexibility to the two ex-spouses
- Time saving compared to going to court
- An easier situation for the children who will see their parents collaborate for the success of the separation process
- 2.5 hours of free family mediation each time there are changes that require a review of the judgment or agreement
To conclude, in Quebec all parents who decide to separate can resort to family mediation. It is a reasoned negotiation that makes it possible to explore the needs of each party, preserve the well-being of the children, and analyze all the options in order to choose the most satisfactory solution for all family members.