In family matters, the family may unfortunately be the scene of several conflicts that sometimes degenerate into crisis. This imbalance often occurs between two people who dissociate, separate or divorce after a certain period.
Today the use of the lawyer is the first thing that causes many people to get a fair and equitable solution. While we all know that many lawyers' mission is to defend to the maximum the rights and interests of individuals and rarely the common interest to all parties through an agreement, mediation is a process that fills what the legal system cannot often do: find the best possible solution for all parties.
The origins of mediation
Since September 1st, 1997, following the adoption of the bill establishing prior mediation in family matters into the Code of Civil Procedure, the court has the power to direct the litigants to the Family Mediation Service of the Superior Court, or if the parties so wish, to an accredited mediator of their choice. This process is in fact subsidized by the government when married couples have a child. Moreover, the legislature intended the mediation to protect the rights of children and judicialize family conflict.
Before, the only recourse was to face a judge as gladiators in front of Caesar. Only the traditional judicial process was available. Fortunately, in recent years, we have seen mediation flourish in Quebec society in order to overcome the negative consequences of a break-up for the children and the repercussions of endless battles in court.
The role and attitude of the mediator
The mediator impartially reviews the claims of the parties and helps them clarify their views. He/She seeks to understand the needs and requests of the clients, but he/she will never work on their origins, the why and the how of the emotions. He/She is not a therapist. Instead, he/she is an arbitrator, educator and motivator. Rather, he/she seeks, by providing tools for communication and negotiation, to awaken and raise a more rational level of consciousness in people, while emphasizing on the future for a better solution.
If a parent expresses concern in relation to a child, how can we resolve this issue amicably based on the facts and circumstances? Mediation invites to study the dispute amicably, to clarify its terms and manage it. The mediator helps the parties to reach a good agreement that works for parents and children.
To fulfill that mission, the mediator may be asked to:
1. Be impartial
2. Have a capacity of analysis and synthesis
3. Ask questions that encourage the parties to find solutions
4. Know how to use moments of silence
5. Encourage parties to listen to each other
6. Facilitate communication and stimulate discussion
7. Have leadership
8. Be creative
10. Manage the interaction between the parties
The benefits of mediation
With this process, you can clearly avoid the following losses:
• Loss of money
• Loss of time
• Loss of relationships
• Loss of control
• Loss of productivity
• Loss of morale and confidence
• Loss of opportunities for success
• Loss of courage
• Loss of energy
• Loss in health (stress)
Statistics on mediation
According to research on psychology from American Joan B. Kelly, mediation allows to reach an agreement in half the time compared to the judicial process. Statistics show that 50-85% of couples who have been in mediation have reached an agreement. A major difference between mediation and the court process is that during mediation, couples are more aware, more confident of the relevance and fairness of their decisions.
The mediator's obligation to confidentiality
The mediator will not communicate, nor transmit, any information obtained during the mediation sessions to anyone who is not a party to the mediation, without the written consent of the clients.
Under section 815.3 of the Code of Civil Procedure, nothing that has been said or written or recorded on mechanical support or otherwise, during a mediation interview, is admissible as evidence in legal proceedings, unless it's a case of mediation on adjournment of the trial by the judge to refer to mediation with the consent of the parties.