10.21The Montreal family mediation service (MFMS) is a free service offering comprehensive mediation.1074 Custody and access mediation were not offered on their own by the service as it was anticipated that financial issues were impossible to isolate from custody and access issues. Richardson’s study of mediation services in several cities, on behalf of the Department of Justice, found that women and children fared better with a mediated settlement, especially in Montreal with its comprehensive mediation programme which resolved all the issues.1075 It was also the most effective service as it was separate from other support services and did not have to compete with other services like the provision of custody assessments or reports. It was also the most structured.
10.22The service employs mediators and a lawyer whose role is a legal consultant to the mediators and clients. He reviews the draft memorandum of agreement drawn up by the mediators. He also advises the parties to obtain separate independent legal advice. The memorandum of agreement has no legal effect and is sent to the parties’ lawyers for ratification prior to the court approving it.1076 The service have a code of professional conduct which is regarded as “essential for family mediation to be accepted by the legal community”.1077
Court and mediation
10.23In Quebec the amended Code of Civil Procedure, 1993, allows the court to adjourn a contested family matter and refer the parties to mediation where the parties consent. Before making the order, the court is required to:
“take into account the particular circumstances of the case, and in particular the fact that the parties have already met a certified mediator, the balance of power in place, the interests of the parties and of their children”.1078
10.24In Manitoba, the court can make a referral to a conciliation officer or any other person with the parties’ consent.1079 Family Conciliation Service is operated by the Family Services Department in co-operation with the court. Legal aid and social services agencies can also make referrals. In practice, Landau et al noted that the Unified Family Court in Winnipeg requires one mandatory mediation session before the parties are permitted to litigate custody and access.1080 Section 52(4)1081
1073 Internet site-http://www.courts.gov.bc.ca/SC/Annual 97/FAMILY.
1074 Alberta Paper (1994) at 33.
1075 Court-based Divorce Mediation in Four Canadian Cities: An overview of Research Results (1988).
1076 Research Paper (July 1990: No.19), 55.
1078 Article 815.2.1. Research Paper No 20, supra at 32.
1079 Alberta Research Paper (1994) at 24.
1080 Queen’s Bench Act, RSM 1970, c 280.
1081 Re-enacted 1982-83-84, c 81, s 4.