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Know the Difference Between Mediation and Mediation/Arbitration(!)

In the midst of a family law matter, you may hear lawyers casually toss around terms like "med" and "med-arb" when planning the next steps for your file - they are referring to mediation and mediation/arbitration. While both useful processes, it is important to understand the differences between mediation and mediation/arbitration before you sign on the dotted line.

Mediation is a process where a third party, usually a lawyer or psychological professional, assist parties in resolving their family law dispute outside of court. Mediation is a without prejudice and non-binding process, and either party may terminate the process at anytime. "Without prejudice" means you are bound by any ideas or proposals you may put forward during the mediation. For example, if James thinks out loud in mediation and utters the words "...maybe I don't need the family boat since I'll never be at the cottage anyways," the opposing party cannot then then run off to court and tell the judge that James abandoned his interest in the family boat at mediation. Agreements made in mediation can be perfected or made binding through other documents recommended by your legal counsel at the conclusion of mediation.

Mediation/Arbitration is a process where the parties attempt to mediate a dispute, and if the dispute cannot be resolved, the mediator will change roles and become an arbitrator (essentially, a judge) who will decide the issues for the parties. There will usually be a clear end to the mediation and commencement of the arbitration. The arbitration can be as formal or informal as the parties may agree. The format of the arbitration will have been decided ahead by the parties and confirmed in the parties' arbitration agreement.

The decision of an arbitrator is very difficult to overturn on appeal. Before entering into the terms of a mediation/arbitration agreement, you should ask your lawyer about the financial and emotional risks of moving your matter into arbitration after a failed attempt at mediation, because it might be worth making another attempt at mediation on a different day. Most importantly, make sure you understand the terms of the mediation/arbitration agreement before signing, because that contract will govern the entire process.

Micah Chartrand is an Associate Lawyer at Soby Boyden Lenz LLP. He offers cost-effective mediation services for people facing any family law issue, whether or not they are represented by legal counsel. Micah's assistant, Nawal, can be contacted at 403-262-0000.

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