What is Family Law Mediation/Arbitration in Alberta?

We know resolving family law disputes is challenging. Separation and divorce often involve high emotions, financial stress, and complex decisions about family property and debt. However, the process for resolving these disputes doesn’t have to be difficult or expensive. There are several alternative dispute resolution processes aside from Court to resolve family law disputes. Two of these processes are Family Law Mediation and Family Law Mediation/Arbitration. But what exactly are these processes, and how are they different?

What is Family Law Mediation?

Family Law Mediation is a process where separating or divorcing spouses jointly retain a family law Mediator (preferably a family law lawyer with specialized mediation training) to help them resolve disagreements regarding various issues, including:

• Primary care and parenting of children (parenting time and decision-making responsibilities)
• Financial support of children (child support) or a spouse (spousal or partner support)
• Division of family property and debt

The Family Law Mediator meets with the separating spouses in an informal, civil and respectful setting to assist them in reaching a fair, reasonable and generous settlement of their outstanding issues. The Mediator does not give either spouse legal advice or make decisions regarding the settlement – the spouses retain full control over decision-making. The Mediator facilitates communication and negotiation between the spouses and may help document any agreements 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 cannot assist separating couples in resolving all outstanding issues. When this occurs, decisions on unresolved matters must be made through either Court proceedings or Family Law Mediation/Arbitration.

What is Family Law Mediation/Arbitration?

Family Law Mediation/Arbitration is a hybrid process where separating spouses retain a Family Law Mediator/Arbitrator (usually a senior family law lawyer trained in both mediation and arbitration) to first attempt resolution through mediation, similar to the process described above. If mediation is unsuccessful (which is relatively rare), the Mediator/Arbitrator then has the authority under the Alberta Arbitration Act and the signed Mediation/Arbitration Agreement to make final and binding decisions on outstanding issues the spouses have agreed to submit to the process.

The Mediator/Arbitrator does not provide legal advice to either spouse. When arbitration becomes necessary, the Mediator/Arbitrator conducts a more formal process for resolving outstanding issues and issues an Award deciding those matters. This Award can then be filed with the Court and has the same enforceability as a court judgment.

Legal Framework in Alberta

Provincial Legislation

Family Law Mediation/Arbitration in Alberta operates under several key pieces of legislation:

• Alberta Arbitration Act, RSA 2000, c A-43: Governs the arbitration process and enforceability of arbitration awards
• Family Law Act, SA 2003, c F-4.5: Establishes the framework for family law matters in Alberta
• Divorce Act (Canada), RSC 1985, c 3 (2nd Supp): Federal legislation governing divorce proceedings

Court Rules and Procedures

The Alberta Rules of Court recognize and support alternative dispute resolution processes, including mediation and arbitration, as preferred methods for resolving family disputes before proceeding to trial.

Benefits of Mediation and Mediation/Arbitration

Why is Family Law Mediation or Family Law Mediation/Arbitration often superior to resolving family law disputes through Court? The answer lies in three key advantages: it’s faster, cheaper, and better.

Faster Resolution

• Courts are busy with heavy caseloads, making the court process lengthy and slow
• Mediation/Arbitration can be completed and decisions issued as quickly as the spouses and Mediator/Arbitrator are available
• No waiting for court dates or dealing with adjournments beyond the parties’ control

More Cost-Effective

• Courts follow a “one process fits all” approach: formal, procedural, and document-heavy
• In Mediation/Arbitration, the process is customized by the spouses and Mediator/Arbitrator to fit their particular situation
• Procedures can be as brief or detailed as agreed upon (while maintaining procedural fairness), significantly reducing legal costs
• Reduced lawyer fees due to streamlined processes and shorter timelines

Superior Outcomes

Family Law Mediation and Mediation/Arbitration offer several qualitative advantages over court proceedings:

Enhanced Involvement and Control: Spouses have very limited control over court processes. In Mediation/Arbitration, they have direct input in choosing the decision-maker, establishing the process, and influencing outcomes (while the Arbitrator retains final decision-making authority when necessary).

Consistency with One Decision-Maker: In court, spouses may appear before many different Justices as their matter progresses. In Mediation/Arbitration, one person hears and decides all issues, developing a comprehensive understanding of all aspects of the dispute.

Creative and Practical Solutions: Court decisions often result in “winner take all” outcomes. Mediation/Arbitration allows spouses to work with their Mediator/Arbitrator to craft agreements or decisions that are more practical, creative (“thinking outside-the-box”), and mutually beneficial (“win-win”) solutions tailored to their specific circumstances.

Privacy and Confidentiality: Unlike court proceedings, which are public record, Mediation/Arbitration processes are private and confidential, protecting family privacy during vulnerable times.

Who Can Serve as Mediators/Arbitrators in Alberta?

Qualifications and Training

Qualified Mediator/Arbitrators in Alberta typically include:

• Senior family law lawyers with specialized training in mediation and arbitration
• Retired judges with family law experience
• Professional mediators with family law expertise and arbitration certification

Professional Standards

Mediator/Arbitrators must adhere to:

• Professional conduct standards established by their governing bodies
• Continuing education requirements in family law and alternative dispute resolution
• Ethical guidelines regarding conflicts of interest and impartiality

The Process: Step by Step

Phase 1: Mediation

1. Joint retention of qualified Mediator/Arbitrator
2. Signing of Mediation/Arbitration Agreement outlining process and scope
3. Information gathering and disclosure of relevant documents
4. Mediation sessions to facilitate negotiation and communication
5. Documentation of agreements reached through mediation

Phase 2: Arbitration (if necessary)

1. Transition to arbitration for unresolved issues
2. More formal process including evidence presentation
3. Arbitration hearing with witness testimony if required
4. Arbitrator’s Award issued with binding decisions
5. Filing of Award with the Court for enforcement

Limitations and Considerations

Voluntary Nature

Family Law Mediation and Mediation/Arbitration are voluntary processes. If both spouses do not agree to participate, court proceedings remain the only alternative for resolving family law disputes.

When These Processes May Not Be Appropriate

• Cases involving domestic violence or power imbalances
• Situations with significant mental health concerns affecting decision-making capacity
• Complex corporate or business valuation issues requiring specialized expertise
• Cases requiring urgent interim relief or protection orders

Legal Representation

While parties can participate without lawyers, Independent Legal Advice is strongly recommended:

• Before signing the Mediation/Arbitration Agreement
• During the process for complex legal issues
• Before finalizing any settlement agreements

Cost Considerations

Typical Fee Structure

• Mediator/Arbitrator fees: Usually charged hourly, shared between spouses
• Reduced legal fees: Due to streamlined process and shorter timelines
• Administrative costs: Minimal compared to court filing fees and related expenses

Cost Comparison with Court Proceedings

While individual circumstances vary, Mediation/Arbitration typically costs significantly less than protracted court litigation due to:

• Faster resolution timelines
• Reduced lawyer involvement
• Streamlined procedures
• Single decision-maker efficiency

Enforceability of Agreements and Awards

Mediated Agreements

Agreements reached through mediation can be:

• Incorporated into Consent Orders by the Court
• Formalized as binding contracts between the parties
• Filed as Court Orders for enforcement purposes

Arbitration Awards

Under the Alberta Arbitration Act, arbitration awards are:

• Final and binding on the parties
• Enforceable as Court judgments once filed
• Subject to very limited grounds for appeal or setting aside

Conclusion

Family Law Mediation and Mediation/Arbitration are not the only ways to resolve family law disputes following separation and divorce, but they represent superior alternatives to traditional court proceedings in most circumstances. These processes offer greater control, faster resolution, reduced costs, and more creative outcomes while maintaining the security of binding decisions when necessary.

The choice to use these alternative processes is voluntary – both spouses must agree to participate. However, for couples willing to engage in collaborative problem-solving with professional guidance, Family Law Mediation and Mediation/Arbitration provide an effective, efficient, and dignified path through the challenges of family restructuring.

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References:

• Alberta Arbitration Act, RSA 2000, c A-43
• Family Law Act, SA 2003, c F-4.5
• Divorce Act, RSC 1985, c 3 (2nd Supp)
• Alberta Rules of Court, Alta Reg 124/2010

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