Understanding Mediation: What Does a Successful Mediation Look Like?

What is Mediation?

Mediation is an Alternative Dispute Resolution (ADR) process where an experienced and impartial mediator assists parties in resolving their disputes. While the parties will pay for their lawyers (if present) and the mediator's fees (typically split), mediation is typically less expensive and faster than court proceedings.

In Alberta, the courts require parties to attempt some form of ADR, and mediation fulfills this requirement. More importantly, it is a valuable tool for parties seeking to resolve their issues collaboratively. Therefore, if private resolution with your ex-partner is not possible, considering a mediator early in the process is advisable. Parties typically need to mutually agree on the choice of mediator.

When is an Agreement Reached?

A successful mediation concludes with a binding agreement. While agreements reached during mediation, including oral agreements, can be valid, the legal enforceability often requires specific steps. This can be a nuanced issue.

While verbal agreements may be reached during sessions, a mediation agreement is definitively legally binding once two conditions are met: each party has consulted with their independent lawyer for legal advice, and a formal written contract is signed. Upon signing and certification, the agreement becomes legally enforceable by a court.

Partial Agreements

Parties may also reach smaller, interim agreements on specific issues before a comprehensive settlement is finalized. In contentious divorces, documenting these smaller agreements can be beneficial to ensure progress and prevent parties from retracting previously agreed-upon terms, as new issues arise. Memorializing these agreements can streamline the overall negotiation process by securing settled matters.

Like the fulsome agreement, a side agreement should follow a similar process to the final agreement. These smaller contracts can specify whether their terms will be incorporated into the final settlement or remain binding only until a certain date.

Who Drafts the Agreement?

The process for drafting the formal settlement agreement can vary. Commonly, the mediator will prepare a letter or Memorandum of Understanding (MOU) summarizing the agreed-upon terms and send it to the parties and their lawyers.

The MOU is typically not a legally binding document; however, the parties can ask for the MOU to be typed up during the mediation. It can be signed and dated before the mediator session concludes, stating that the formal settlement agreement will be drafted shortly. In this way, it has more legal weight than a typical MOU, which merely sets the stage for the formal agreement to be drafted.

Preparing for Successful Mediation

Before starting mediation, carefully consider a mediator whose style and expertise align with your needs. Keep in mind, the choice of mediator requires mutual agreement between you and your ex-partner. At SL Mediation, our mediators have extensive experience and we know that we can provide a beneficial service to help drive resolution on all family law matters. 

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