People often ask whether the agreements they reach in mediation are binding on them, or whether they have to do something to cause them to be binding on them. Part of the answer has to do with lawyer involvement, and the other part has to do with how binding each party wants the agreements to be.
First, let’s do a primer on what mediation is.
Mediation is a negotiation process for families that are experiencing conflict, or who are separating or divorcing, or who have something to work out between them.
The mediator is the process manager who is a neutral facilitator to help the parties to come together, hear each other, and help to bridge the gap between the parties’ respective views.
The focus of mediation is on finding mutually-acceptable resolution to any issue that is raised.
It can be broken down into 4-steps from start to finish:
- An initial consultation – we begin with an introductory meeting with the mediator and each party, which allows the parties to each tell their story.
- Next, we have a series of joint meetings – these are meetings with both parties together with the mediator, and we discuss all of the topics that are needed to reach final resolution
- At the end of the series of meetings, the mediator drafts a document, either a mediation summary or an actual agreement, to formalize all of the decisions made during the mediation sessions.
- Finally, once the parties are happy with the content of the final document, then each party will typically meet with a lawyer to get independent legal advice on the agreements reached.
Do parties have to get lawyers at the conclusion of mediation?
There’s never a “have to” in relation to getting a lawyer. It all comes down to how comfortable parties are in agreeing to things without getting independent legal advice.
The role of a mediator is very different from the role of a lawyer.
The role of a lawyer is to advocate for one party, to be their voice, to negotiate on their behalf, and to advise them of their legal rights and obligations under the law
The role of a mediator is to be a neutral facilitator, not on either party’s side, and to use legal principles to guide parties’ decision-making process.
Lawyers can come into the mediation picture in a few different ways:
Sometimes a party will get a lawyer right from the start to advise them in the background in between mediation sessions. In this instance, a person doesn’t have their lawyer negotiate for them, only provide them with behind-the-scenes advice.
The next step would be for parties to have their lawyer attend mediation sessions with them – essentially making it a 5-way meeting with 2 parties, 2 lawyers, and the mediator. This can get expensive with 3 professionals in the room, but it can make a huge difference for parties who feel that they need their advocate there with them to advise them as they’re making decisions.
What if people decide not to get a lawyer – what happens with the agreements reached during mediation?
It really depends on the topic of the agreements.
For parenting-related issues – there’s no legal obligation to get a lawyer to sign off on agreements reached. Parents can make their own agreements, with or without the help of a lawyer or mediator, and the agreements can be binding on the parties.
For spousal support issues – it is definitely recommended that you get a lawyer’s signature to sign off on this particular topic. There’s a lot of legal issues relating to spousal support, and if you don’t get a lawyer’s signature on such agreements, there’s a good chance that any agreements reached could be set aside if challenged in the future.
For division of assets and debts – there is legislation that says specifically that a lawyer’s signature is required on any division of property agreements reached. If not, then a court could overturn the agreement because of this lack of signature.
The real question is how binding do the parties intend any agreements reached in mediation to be? If they want the agreements to be final and binding on themselves, then they need to be very clear with one another. If they intend to obtain independent legal advice before agreeing to anything in a final and binding way, then they need to also state that.
I always recommend to parties that they get legal advice before finalizing their agreements. As a divorce professional, it is my practice to be extremely cautious and conservative, to ensure that parties feel that they are fully informed before any legally-binding agreements are reached.
Henka Divorce Law & Mediation is a Collaborative Law and Family Mediation firm that helps families thrive as they transition to separation, divorce, or cohabitation. Understanding that every journey is different, we guide families through the right legal or mediation process that fits their unique situation.
Our client service is built on three pillars – focusing on the future, nurturing and supporting children, and working together towards well-being. This includes considering everyone’s needs throughout the process. We work closely with families to provide a meaningful and fair resolution, while keeping costs down by staying out of court.
We serve families in Alberta and Saskatchewan, Canada through their separation or divorce by providing in-person and virtual Collaborative Law or Mediation services.
With extensive knowledge in matrimonial law, our founder Stephanie Dobson uses a caring, results-focused approach to help parents navigate a family separation or divorce while they connect with and support their children. Learn more about her approach and credentials.