Getting a divorce can be an emotionally draining, time-consuming, and expensive process. There are two alternatives to litigation (the process of going to court that is often necessary in getting a divorce), they are ARBITRATION and MEDIATION. Both these processes involve a third, neutral party who will listen to your situation and help you reach a solution. If you are considering using either of these alternatives to the traditional litigation system, it is important to know the similarities and differences between them in order to decide which system best fits your needs.
Arbitration is a private and confidential way to settle disagreements outside the court system. Arbitration involves an impartial party who makes a decision after hearing and assessing your situation. The decision of the arbitrator is final, and cannot be questioned. While not automatically legally binding, it can be enforced by the Quebec courts through a process called “homologation.”
Mediation is a private and confidential way to settle disagreements outside the court system, but that is less formal than arbitration. Mediation involves an impartial party who does not make a decision, but guides the discussion between you and your spouse. The success of your meeting depends on you and your spouse reaching an agreement on your own, the mediator only facilitates discussion to help the negotiation process move towards a resolution of your problems. The meetings are strictly confidential, and the mediator can under no circumstances be called to testify in court.
! Mediation is mandatory when children are involved and the spouse do not agree on matters concerning the division of your things. (the legal term is “division of your patrimony”. Please see the section on “What happens to my things when I get married ?” of “Marriage and Civil Union” for further information on patrimonies.
Couples with children are entitled to six free mediation sessions with a professional mediator.
For more information, please see http://www.justice.gouv.qc.ca/english/publications/generale/sep-div-a.htm
Below is chart that breaks down the important similarities and differences:
|
Arbitration |
Mediation |
|
| Is there an impartial person who oversees the discussion? | Yes – that person is called the arbitrator | Yes – that person is called the mediator |
| What is the goal of the meeting? | The arbitrator will listen to you and your spouse, and he/she will reach a decision. | The mediator will listen to you and your spouse and will guide you in reaching a decision. However, it is only you and your spouse who makes the decision. |
| How formal a process is it? | More formal (though less formal than litigation – i.e. going to court) | Less formal |
| Enforceability of decision reached – is it legally binding? | Normally enforced in a court of law therefore it is often legally binding | Normally not enforceable in a court of law, therefore it is NOT legally binding |
| Can I withdraw midway through the process? | No | Yes |
| Do I have to pay? | Yes | The Quebec government can pay for mediation appointments, see below to see if you qualify |
Free mediation only applies in situations where the divorcing couple has children.
Beginning on December 1, 2012, to promote family mediation, Quebec has agreed to pay the fees of certified family mediators.
You can qualify if:
- you attend a parenting after separation information session, which lasts 2 hours 30 minutes and is presented by certified family mediators in one of Québec’s 42 courthouses during the evening. (Former spouses will not be registered for the same session, unless they request it);
- when you meet, as a couple, with the family mediator of your choice for
- 5 hours of professional services, if you are in the process of separating,
OR
- 2 hours 30 minutes of professional services, if you already have an agreement or court judgment but wish to have it reviewed, if you have already received family mediation services, or if you have already obtained a judgment ordering separation from bed and board (legal separation).
If you and your spouse have dependent children and cannot agree on various questions connected with your separation, you have a legal obligation to attend a family mediation information session before being heard by the court. However, in some situations family mediation is unlikely to be appropriate.
For more information, please see http://www.justice.gouv.qc.ca/english/programmes/mediation/accueil-a.htm
Mediation is mandatory:
- when children are involved and the spouses do not agree on matters concerning the division of your things
Mediation is NOT mandatory:
- when there is an inequality of power relationship (e.g. victim of conjugal violence)
- when one of the spouses has a physical or psychological disability
- when there is great distance between the homes of the two spouses