Michel+Tétrault,+Droit+de+la+famille


 * __How Family Mediation Works in Quebec__

1. Family Mediation: the principles

1.1 Free and universal** With the //Loi instituant au Code de procédure civile la médiation préalable en matière familiale//, free (in whole or in part) family mediation is avaiable for couples with children without distinction based on the couple's revenu in every Cour supérieur in Quebec, starting in 1997.

- 814.3 CPC states that family mediation is __required__ before a court can hear a case involving the interests of the couple and their children on a matter of: custody, support to children or to the spouse, the family patrimony or other patrimonial rights resulting from marriage. - A court can also order, at any time during a trial, that mediation sessions be attended by the parties on a given topic.
 * 1.2 The targeted clientèle**

- Before 1997, a court coul suspend to recommend reconciliation or conciliation of the parties. The court could suggest, but not order, conciliation or mediation. It was a voluntary process. - Now a judge can order the parties to see the mediation at the Superior Court or a mediator of their choice.
 * 2. Mediation by court order**

- When the court orders mediation, the procedure is adjourned for a period not exceeding 80 days. After this period, the parties can agree on a prolongation; the court can fix an ultimatum; or the court can decide to resume the case. - Mediation must begin within 20 days of the initial order. If it has not, one party can ask for the court to resume hearing the case. - If the mediation is finished before the 80 days are over, one paty can ask the court to resume hearing the case. The same judge stays with the case unless the judge is changed for administrative reasons.
 * 2.1 Adjournment of procedures**

-** The court takes into account the language spoken by the parties and the type of specialisation a mediator would need. The judge considers the fact that the parties have already seen a mediator. The judge takes into account the bargaining powers of the parties, and their ability to negotiate. She considers the interests of the parties and the children (815.2.1. CCP) - The fees of the mediator will be divided between by the parties as the judge orders. The Superior Court Service of Family Mediation will do up to six mediations for free for couples with children, even if the couples had already used this service for Preliminary Mediation.
 * 2.2 Protection of the parties' rights


 * 3. Preliminary Mediation

3.1 The idea -** The mediator tries to negotiate an agreement with the free and enlightened consent of all parties. - The motivation was dejudiciarisation, and taken into account the best interests of the child. - Preliminary mediation is only available when the best interests of the child are at issue. - Couples are required by law to go, not to a mediation session, but to an information session about mediation. Proof of attendance to this session must be brought to court for a court hearing to proceed. - If the parties tried mediation, they never have to try it again even if one party requests it. - But what if a new question comes up that wasn't dealt with in mediation? If the purpose of mediation is to expose the parties to it as an option, then the question is of no interest. But if the legislature's intention was to submit all debates to mediation, one can presume that the parties will have to go to mediation again.

- The information session can take two forms: it can be private (814.4) or it can be public and run by two mediators (one of whom is a legal counselor). The choice of public or private forum is left to the parties. In case of disagreement over this or over a given mediator, the parties must go to a public forum. The parties can go to different group sessions.


 * 3.2 The information session (814.6 CCP)

3.2.1. The content** - Its objective is to inform the parties of mediation: its nature, its objectives, its procedure (ie the steps), the role of the parties and the mediator. - The mediator informs the parties of their right of recourse to mediation; their right to choose this mediator or another. - If one party does not want a mediator, the mediator writes up a report on this. If the parties agree to find another mediator, this goes in the report too.

- A party can refuse to participate in the info session if she has serious motifs not to (ie: inequal powers, mental or physical capacity, or the parties living far away from each other). This declaration must be made to a mediator. It remains that the court can order mediation during the hearing (815.2.1).
 * 3.2.2 The exceptions (814.10 CCP)**

- If a party doesn't produce a reason for non-participation and doesn't participate in the info session can be ordered by the court to pay all expenses related to her request in court. It is only when both parties prove they have done mediation that the hearing can proceed.
 * 3.2.3. The sanction (814.12 CCP)**

- Mediation begins when both parties are present, in the presence of one or two mediators. - When there are two mediators, this is called 'comediation' and often involves mediators from two different areas of specialty. - Mediation can be stopped without a reason given by a party (814.8) - Mediation can take place in front of other people if the parties agree and the mediator thinks it necessary (814.7). Ex: a new spouse, grand-parents, or children. - A mediator can stop a mediation process when she thinks it fit.
 * 3.3. The process of mediation (814.7 and 814.8 CCP)**

- The court can make interim orders to protect the parties' and children's rights for the duration of the mediation period.
 * 3.3.1 Interim mesures (814.9 CCP)**

- The court can look at its content for everything that addresses public order. - It is used for all orders to review a judgment. - For appeals, parties do not need to return to an info session - this info session is valid for the duration of the case. - The signature of agreement in mediation between parties cannot override the best interests of the child.
 * 3.3.2 The mediation report: its value (814.13 CCP)**
 * -** The report by the mediator is valid until the final decision on the case by the court.

The mediator's report must be made in the presence of the two parties. The report will explain any agreements or questions consented upon, as well as details of access, custody, support, and division of property. The report cannot contain any other information, and must be signed and dated by the mediator.
 * 3.3.3 The content of the report (827.3.1 CCP)**

Whenever a court rules on a mediation report, the court must decide if the report's agreement is in the best interests of the child and if the consent of the parties was given freely. The court can convene each party separately to determine this.

The report is brief. It should not be confused with an agreement between spouses which contains all the details of their agreement and is simply ratified by the court.

-** Nothing said during mediation is admissible in court procedures with one exception: if it's a case addressed in 815.2 and the parties and mediator agree. - A party cannot explain to the court the reason she agreed to an agreement during mediation. - No document from the mediator can be considered. Nothing said during mediation can be brought forth. Refusal to disclose a mediation document cannot be interpreted negatively by the court. - Once ratified by the court, the mediation report is no longer confidential and can be used subsequently. - A mediation report can for a 'transaction' (in the sens of art. 2631 CCQ) - If the mediation report becomes an agreement by the parties to be ratified by the court, the confidentiality no longer applies. And the lawyer who wrote up the agreement can be subpoena'ed.
 * 3.4 Confidentiality of the process (815.3 CCP)

- Anything said in mediation is confidential, whether it relates to family matters, civil matters or small claims court.
 * 3.5 Negotiation and mediation**

- Parties must solve themselves their differences before judicial proceedings or in court. - A person would be unlikely to suggest a compromise if this compromise could be brought up in court. - An offer to settle should not be prejudicial to the party offering - and should not weaken her cause, or appear to be a concession. - Everyone (interveners, legislators, judges, lawyers, mediators) try to make parties agree. In family matters, this aims to avoid the harm that can result to children. - Three conditions are necessary for this priviledge relative to negotiation: (a) a real and eventual litigation (b) written or verbal communication transmitted with the intent of solving (c) the expressed or presumed intention that the communication will not be divulged if the parties to not arrive at an agreement.
 * 3.5.1 The idea**
 * -** Communications between opposing lawyers are priviledged information.