Alternative Dispute Resolution Methods in Québec

Alternative dispute resolution (ADR) methods offer parents a way to resolve their custody, divorce, separation or child support cases without going to court.

Parents in Québec must at least consider alternative dispute resolution processes before starting a court case — though you don't have to give proof to the court.

You can use ADR methods to come up with a new custody or child support arrangement or modify an existing one. Arbitration is not an option for family cases.

What to do before starting an ADR method

To have the best chance of success, you should prepare accordingly.

• Research ADR processes.
• Understand what you want to get out of the process.
• Before choosing an ADR professional, check out their professional background and read reviews from former clients.
• Make a parenting plan to propose.
• Gather important documents (e.g., financial records, your child's school and medical records).

Mediation

Mediation is the most popular form of ADR. It provides more structure than negotiating with the other parent on your own, and it's cost-effective.

Most parents walk away with an agreement, but even if you don't, you might get better at compromising.

Partial mediation addresses some disagreements, and comprehensive mediation addresses them all.

Who's involved

The process is overseen by a family mediator. Your mediator is usually trained also as a lawyer, notary, psychologist, psychotherapist or social worker. You can find a certified mediator online.

The parents cannot bring their lawyers or other professionals to mediation. They can bring their child, only if both parents agree. Parents can also agree to have two mediators (called comediators). Comediation is meant to mitigate the effects of any bias from a mediator.

Costs

Mediators offering government-subsidized services provide five hours of free mediation to parents trying mediation for the first time. If you've been before, you'll get two and a half hours free. After the time expires, the mediator will charge $110 per hour, which parents typically split.

To qualify, you must have a minor or dependent child or an adult child who is in school.

If you hire a private mediator, expect to pay at least $200 per hour.

The process

Both parents have to agree to try mediation. You can go to mediation any time before or after starting a case.

Every mediator has a different process for retaining their services. Some only require you send an email explaining your situation, while others want you to fill out an application. After the mediator agrees to take on your case, you and the other parent will sign an agreement to mediate.

Mediation sessions take place virtually or in the mediator's office. Each session involves both parents. If necessary, parents can sit in separate spaces as the mediator goes back and forth informing parents of each other's proposals.

The first meeting is usually to acquaint parents with the process. The remaining sessions focus on the issues the parents want to discuss.

The mediator is there to facilitate the conversation and make sure the process is fair and respectful. If parents get off track, the mediator may interject to refocus the session. Parents or the mediator can stop the mediation at any time if necessary.

If you reach an agreement, the mediator may write up an Agreement Summary. You should review the summary with a lawyer. If you want a court order, you cannot submit this to the court as is. You or your lawyer must write it into another document first, then ask the court to homologate the agreement. (See Making your agreement legally enforceable below.)

Mediation is confidential. You cannot use any information you learn during the process in court.

Collaborative family law

In collaborative family law, collaboratively-trained lawyers represent parents in negotiations. The lawyers help brainstorm settlement options until parents come to an agreement.

Collaboration can work for parents at any conflict level — so long as they are willing to take part respectfully. To feel more comfortable, parents with severe conflict might stay in separate rooms or have video conferences instead of in-person meetings. The presence of lawyers often helps parents feel protected.

Who's involved

Each parent is represented by a collaboratively-trained lawyer. If needed, other family and financial professionals aid in the process.

Costs

Hourly fees for collaborative lawyers vary based on location and experience. They are generally higher than mediators' fees.

If other professionals participate, parents generally divide the fees for their services evenly, but they can negotiate a different breakdown.

The process

Parents and their lawyers all get together to negotiate at settlement meetings. Each meeting usually lasts one to two hours.

At the first meeting, you'll:

• Discuss the collaborative process, your goals and expectations
• Figure out the order in which you'll address the issues in your case
• Figure out what documents you need to exchange
• Sign a confidentiality agreement

You might go right into discussing urgent matters at the first meeting or schedule another to begin negotiations. Some lawyers approach the process like court, exchanging all the information first and then tackling the issues.

You'll have settlement meetings until you reach an agreement or find that you cannot. Your lawyer will be there to help you voice your opinions as well as to provide moral support.

The length of the process depends on the case. Some cases resolve after just a few meetings, while others take much longer.

If parents reach a consensus, their lawyers write a legal agreement for them to sign. The lawyers submit a joint application to the court requesting the homologation of the agreement. (See Making your agreement legally enforceable below.)

If collaboration is unsuccessful, you cannot use the same lawyer in court. This encourages successful negotiation as lawyers must come up with viable settlement options or lose a client.

You cannot share anything you learned during the collaborative process in court or elsewhere.

Basic negotiation

Of course, you always have the option of traditional negotiation.

Who's involved

Parents can negotiate on their own, or each one may choose to hire a lawyer or professional negotiator.

Costs

Negotiating one-on-one is free. You'll have to pay hourly fees to use a professional.

The process

There isn't a formal process for basic negotiation. You should exchange all relevant information before the process begins, including financial documents. It can also help to meet in a neutral place.

If you come to an agreement, write it down. You might hire a professional to handle this; it's important that your document uses the correct legal language and doesn't leave anything open to interpretation. Once signed, the agreement becomes a binding contract, and you can opt to make it legally enforceable (more below).

Basic negotiation is not confidential. If you go to court, you can share documents and conversations from negotiation with the judge handling your case.

Making your agreement legally enforceable (homologation)

You don't have to get a judgment about custody or child support, but it's recommended you at least homologate your agreement. This makes your agreement as enforceable as a judgment from the court so either parent could face legal consequences for disobeying the terms. Plus, you'll get a couple of hours of free mediation should you need to revise your agreement.

The process of turning an agreement into an order is called homologation. First, you'll file your agreement along with a joint application requesting a consent order. If you used collaborative law, your lawyers will do this for you.

Then, a special court clerk (a clerk who is a lawyer with the power to make judgments) will review your forms and issue an order if appropriate. If the clerk sees that your forms are incomplete, they may refer you to a judge who then decides whether to approve.

It could take a couple of weeks or months to get the order.

Tips for making the most of your ADR session

• Keep your emotions in check.
• Treat everyone present with respect.
• Outside of ADR sessions, keep what's going on in confidential negotiations to yourself.
• Prioritize your child's needs and interests rather than fixating on one desired outcome.
• Consider what will benefit the other parent as well.
• Think about why you want what you want — e.g., Why is it best for your child to live primarily with you?
• Be creative when proposing solutions.

Preparing for alternative dispute resolution sessions

Preparation is as important when you decide parenting matters through an alternative method as when you decide them in a courtroom.

You'll still be trying to convince someone — just the other parent instead of a judge.

A proposed parenting plan with a parenting time schedule presents your argument persuasively. You may also want to present messages exchanged with the other parent, a log of important interactions with the other parent, your child's expenses, and more.

The Custody X Change online app lets you create all of this in one place.

It has:

• A parenting plan template
• Customizable parenting calendars
• Printable parent-to-parent messaging
• A parenting journal
• An expense tracker
• And beyond

Custody X Change makes sure you're prepared to get what's best for your child through any method of deciding parenting arrangements.