The Choice Between Mediation and Court
When facing a family law dispute in Alberta, you have several options for reaching resolution. The two primary paths are mediation, where you and your spouse work with a neutral third party to negotiate an agreement, and litigation, where a judge makes decisions for you. Understanding the differences between these approaches helps you make an informed decision about which path to pursue.
Neither approach is universally better than the other. Mediation works well for many families and offers significant advantages in terms of cost, time, and control over outcomes. However, litigation is sometimes necessary or more appropriate, particularly when safety concerns exist, power imbalances are severe, or one party refuses to negotiate in good faith.
Many families use a combination of approaches, starting with mediation and moving to court only for issues that cannot be resolved collaboratively. Alberta courts actively encourage mediation and other alternative dispute resolution methods, requiring parties in many cases to attempt mediation before trial.
What Is Family Mediation?
Family mediation is a process where a trained, neutral mediator helps separating couples discuss and negotiate their issues. The mediator does not make decisions for you or give legal advice; instead, they facilitate productive conversations and help you reach agreements that work for both parties.
The Mediator's Role
A mediator:
- Remains neutral: Does not take sides or advocate for either party
- Facilitates communication: Helps you have productive conversations
- Identifies issues: Helps clarify what needs to be resolved
- Generates options: Brainstorms possible solutions
- Manages conflict: Keeps discussions focused and respectful
- Documents agreements: Prepares a written record of what you agree to
Types of Family Mediation in Alberta
- Court-connected mediation: Free or low-cost mediation offered through Alberta Justice family court counsellors
- Private mediation: Mediators in private practice (lawyers or mental health professionals)
- Comprehensive mediation: Addresses all issues (parenting, support, property)
- Issue-specific mediation: Focuses on particular disputes (e.g., parenting schedule only)
- Med-Arb: Mediation followed by arbitration if no agreement is reached
Understanding Litigation
Litigation is the formal court process where a judge makes decisions about your family law dispute after hearing evidence from both sides. This is what most people think of when they think of "going to court."
The Court Process
Family law litigation typically involves:
- Pleadings: Each party files documents setting out their position
- Financial disclosure: Mandatory exchange of financial information
- Interim applications: Requests for temporary orders while the case proceeds
- Questioning: Formal examination of the other party under oath
- Conferences: Meetings with a judge to narrow issues and encourage settlement
- Trial: Formal hearing where evidence is presented and the judge decides
The Judge's Role
Unlike a mediator, a judge:
- Has authority to make binding decisions
- Applies the law to the facts presented
- Does not help parties negotiate
- May make orders neither party requested if appropriate
- Makes decisions based on legal principles, not necessarily what parties prefer
Comparing Mediation and Court
Cost Comparison
Mediation: Typically costs $3,000-$10,000 total (split between parties), depending on complexity and number of sessions required. Court-connected mediation may be free or low-cost. You may also need to pay for independent legal advice.
Litigation: Typically costs $15,000-$50,000+ per party for a contested divorce, and can be much higher for complex cases or those that go to trial. Extended litigation can cost $100,000 or more per side.
Time Comparison
Mediation: Most matters resolve in 2-6 sessions over 2-4 months. Simple issues may resolve in a single session. Complex matters may take longer but still typically faster than court.
Litigation: Contested divorces typically take 1-3 years from filing to trial. Even with settlement before trial, the process often takes 12-18 months. Court schedules cause significant delays.
Control Over Outcomes
Mediation: You and your spouse make all decisions together. Nothing is imposed on you. You can be creative with solutions that a court could not order. Agreements can be tailored to your family's specific needs.
Litigation: A judge makes the final decisions. You present your case but have no control over the outcome. Judges apply standard legal principles and may not understand or accommodate your family's unique circumstances.
Privacy
Mediation: Completely confidential. What is said in mediation cannot be used in court. Your personal and financial details are not part of the public record.
Litigation: Court proceedings are generally public. Court documents become part of the public record (though some family law documents have restricted access). Your disputes may be aired publicly.
Impact on Relationships
Mediation: Designed to preserve relationships and improve communication. Particularly valuable when you will co-parent together long-term. Teaches conflict resolution skills you can use in future disputes.
Litigation: Adversarial by nature. Often damages relationships further. Positions parties as opponents. Can create lasting bitterness that affects co-parenting for years.
Advantages of Mediation
- Cost savings: Typically 50-80% less expensive than litigation
- Speed: Resolves matters in months rather than years
- Control: You make the decisions, not a stranger in a black robe
- Flexibility: Sessions scheduled at your convenience, not court availability
- Creative solutions: Can craft agreements tailored to your family
- Confidentiality: Keeps your private matters private
- Relationship preservation: Reduces conflict and improves communication
- Satisfaction: People are more satisfied with agreements they created than orders imposed on them
- Compliance: Parties are more likely to follow agreements they participated in creating
- Less stressful: Collaborative approach is emotionally easier than courtroom battles
When Litigation May Be Necessary
Despite mediation's advantages, court may be the better option in certain circumstances:
Family Violence
When there is a history of domestic abuse, mediation may not be safe or appropriate. The power imbalance makes genuine negotiation impossible. The victim may agree to unfavorable terms out of fear. Courts can provide protective orders and take steps to ensure safety.
Significant Power Imbalance
Even without violence, severe power imbalances (economic control, emotional manipulation, narcissistic personality) can make mediation ineffective. The more powerful party may dominate negotiations, resulting in unfair agreements.
Bad Faith Participation
Mediation requires both parties to participate honestly. If one party is hiding assets, lying about income, or using mediation to delay while dissipating property, court intervention is necessary.
Urgent Matters
When emergency orders are needed (immediate safety concerns, imminent asset dissipation, time-sensitive decisions), court can act quickly through emergency applications.
Complete Impasse
When parties fundamentally cannot agree despite good-faith efforts, a judge may need to decide. This is particularly true for "binary" decisions where compromise is not possible (which city the children will live in, for example).
Do I Need a Lawyer If I Mediate?
Mediators are neutral and do not give legal advice to either party. Even in mediation, legal advice is important:
Before Mediation
- Understand your legal rights and obligations
- Know what a court would likely order (your "BATNA")
- Identify issues that need to be addressed
- Prepare for effective negotiation
During Mediation
- Some people have lawyers present at mediation sessions ("lawyer-assisted mediation")
- Others consult with lawyers between sessions
- Lawyers can help you evaluate proposals and generate options
After Mediation
- Have a lawyer review any agreement before signing
- Obtain Independent Legal Advice (ILA) to ensure the agreement is fair and enforceable
- Have the agreement formalized in proper legal documents
The combination of mediation for negotiation and lawyers for legal advice often provides the best of both worlds.
How Alberta Courts Encourage Mediation
Alberta courts actively promote mediation and other settlement processes:
- Mandatory mediation: Many judicial centres require mediation before trial
- Court-connected services: Free or subsidized mediation through Family Justice Services
- Early Intervention Case Conference: Early meeting with a judge to encourage settlement
- Judicial Dispute Resolution (JDR): A judge helps parties try to settle without formal trial
- Costs consequences: Unreasonably refusing to mediate can affect costs orders
Frequently Asked Questions
Is mediation legally binding?
A mediated agreement becomes legally binding when it is signed by both parties and, in most cases, filed with the court or incorporated into a court order. Agreements that are not formalized may not be enforceable.
What if mediation fails?
You can still go to court. Mediation is confidential, so what happened in mediation cannot be used against you. You will not be penalized for trying mediation. Many people resolve some issues in mediation and litigate only the remaining disputes.
Can I be forced to mediate?
In many Alberta courts, attempting mediation is mandatory before you can go to trial. However, you cannot be forced to reach an agreement. The requirement is to participate in good faith, not to settle.
My spouse refuses to mediate. Now what?
You may need to proceed with court applications. Document your attempts to engage in mediation. Courts may consider a party's refusal to mediate when making costs decisions.
How do I find a family mediator in Edmonton?
You can access court-connected mediation through Alberta Family Justice Services. For private mediators, the Alberta Arbitration and Mediation Society maintains a roster of qualified family mediators. Your family lawyer can also recommend mediators they have worked with.