January 2009

Notice to Mediate
(Family) Regulation

For additional information about mediation of family disputes, you should also see the bulletin called Family Mediation.

Notice to Mediate (Family) Pilot Project
The Ministry of Attorney General introduced a family mediation pilot project in Nanaimo to help people find early solutions to their family law disputes. The Notice to Mediate (Family) Regulation came into force November 1, 2007, and enables any party to a family proceeding in the Nanaimo registry of the B.C. Supreme Court to require the other parties to attend a single mediation session. Commencing April 1, 2008, the pilot project was expanded to include two additional Supreme Court registries: Duncan and Victoria. Commencing January 1, 2009, the pilot project was further expanded to include two more Supreme Court registries: Vancouver and New Westminster. A brief history of the Notice to Mediate process follows, after which there are questions and answers specific to the Notice to Mediate (Family) Regulation, B.C. Reg. 296/2007.

The Notice to Mediate process
The Notice to Mediate process enables any party to a wide range of actions in the Supreme Court to make an informed assessment that mediation would be productive, and then to require the other parties to attend a mediation session.

Some jurisdictions have imposed a blanket obligation to mediate all or selected categories of civil cases. The Notice to Mediate differs from this approach because the requirement to mediate is initiated by a party to the action.

Notice to Mediate Regulation (Motor Vehicle)
The Notice to Mediate process was first introduced as a dispute resolution option for motor vehicle personal injury actions. The Notice to Mediate Regulation, B.C. Reg. 127/98, came into force in April 1998. In the ten years since it was introduced, the process has been used in more than 23,000 actions. In the spring of 1999 an independent research organization conducted an evaluation of the Notice to Mediate process in the motor vehicle context. It reported that in approximately 74 per cent of the actions mediated under the Notice, all issues were resolved. An additional 10 per cent of actions settled after delivery of a Notice, but before the mediation session. A number of lawyers who had delivered or received a Notice were canvassed, and 88 per cent of respondents felt that the Notice to Mediate process could usefully be expanded to include other types of civil, non-family, matters.

Notice to Mediate (Residential Construction) Regulation
In June 1998 The Commission of Inquiry into the Quality of Condominium Construction in British Columbia: The Renewal of Trust in Residential Construction (the Barrett Report) observed that the traditional adversarial process has not worked well in complex residential construction disputes. The commission recommended that the proposed Homeowner Protection Act make available an alternative dispute resolution option for disputes arising from problems surrounding residential construction. The Notice to Mediate (Residential Construction) Regulation, B.C. Reg. 152/99, came into force in May 1999. It provides that "any party to a residential construction action may initiate mediation in that action".

Notice to Mediate (General) Regulation
Throughout 2000 the Dispute Resolution Office consulted widely with the bar, the mediation community and the Supreme Court concerning expansion of the Notice to Mediate process to include a wide range of civil, non-family, actions. The Notice to Mediate (General) Regulation, B.C. Reg. 4/2001, came into force on February 15, 2001.

The Notice to Mediate (General) Regulation applies to Supreme Court actions; it does not apply to originating applications. In addition, the following actions are excluded: family law proceedings, actions brought under the Judicial Review Procedure Act, claims for compensation for physical or sexual abuse, and actions to which the other Notice to Mediate regulations apply.

Questions and answers about the expanded Notice to Mediate process for family law proceedings in the Supreme Court follow.

Dispute Resolution Office
Ministry of Attorney General
PO Box 9222, Stn Prov Govt
Victoria, BC V8W 9J1
Tel: 250 387-1480
Fax: 250 387-1189
E-mail: AG.DRO.Victoria@gov.bc.ca
Web site: www.ag.gov.bc.ca/dro

Questions & Answers

What is the Notice to Mediate (Family) process?
The Notice to Mediate (Family) process enables any party to a family law proceeding in the Supreme Court to compel all other parties to the proceeding to mediate the matters in dispute in a private and safe environment. This process is being piloted in the Nanaimo, Duncan, Victoria, Vancouver and New Westminster registries of the Supreme Court. Authority for the Notice to Mediate (Family) Regulation is contained in section 68 of the Law and Equity Act.

What is mediation?
Mediation is a process for resolving disputes. Two or more parties to a dispute meet and attempt, with the assistance of a mediator, to settle the matters in dispute. The mediation takes place in a private, informal setting where the parties participate in the negotiation and design of a settlement. The mediator has no decision-making power; the dispute is settled only if all of the parties agree to the settlement.

Does the Notice to Mediate (Family) Regulation apply province-wide?
No. The Notice to Mediate (Family) Regulation currently applies only to family law proceedings in the Nanaimo, Duncan, Victoria, Vancouver and New Westminster registries of the Supreme Court. It is a pilot project. An evaluation of the Notice process in the family law context will be conducted by an independent research organization, following which a decision will be made concerning further expansion of the process to other registries.

Does the Notice to Mediate (Family) Regulation apply only to family law proceedings commenced after the Regulation came into force?
No. The Notice to Mediate (Family) Regulation applies to any family law proceeding in the Nanaimo, Duncan, Victoria, Vancouver and New Westminster registries, regardless of when the proceeding was commenced.

At what stage in the proceeding can the Notice to Mediate be used?
The Notice can be used at any time between 90 days after the filing of the first statement of defence and 90 days before the date of trial, unless the court orders that it can be used before or after this timeframe.

Does the Notice to Mediate (Family) Regulation require that mediators screen for power imbalance, domestic violence and abuse?
Yes. The regulation requires that mediators hold a separate pre-mediation meeting with each party during which they must screen for power imbalance, domestic violence and abuse. In these pre-mediation meetings the mediators must also discuss with the parties the importance of independent legal advice. Following a pre-mediation meeting a mediator may end the mediation process if he or she concludes that mediation would not be appropriate or that the mediation process will not be productive.

How does the Notice to Mediate process work?
The party who wishes to initiate mediation delivers a Notice to Mediate to the other parties to the proceeding. The parties must jointly agree upon a mediator within 14 days after the Notice has been delivered to all other parties. The mediation must occur within 60 days after the mediator's appointment but not later than fourteen days before the date of trial, unless a later specified date is agreed to by all parties or is ordered by the court.

What happens if the parties cannot agree on the choice of mediator?
If the parties themselves are unable to agree upon a mediator within 14 days any party may apply to a roster organization designated by the Attorney General to appoint the mediator. The Mediate BC Society (formerly known as the British Columbia Mediator Roster Society) has been designated as a roster organization for this purpose. The Society maintains a list of trained and experienced mediators who have agreed to subscribe to a code of mediation conduct. For more information about the Society contact:

Mediate BC Society
Attention: Mediator Roster Program
Suite 177 – 800 Hornby St.
Vancouver, B.C. V6Z 2C5
Phone: 604 681-6050
Toll-Free Phone: 1-888-713-0433
Fax: 604 681-6080
E-mail: mediators@mediatebc.com
Web site: http://www.mediatebc.com/

If a party applies to the society for appointment of a mediator, do the parties have any opportunity for input into who will be appointed?
Yes. The process that the society must follow in selecting a mediator is set out in sections 8 through 11 of the Regulation. Briefly, the process is as follows:

• Within seven days of a party applying to the society for appointment of a mediator, the society must deliver to all parties an identical list of at least six possible mediators.

• Within seven days of receiving the list, each party may delete from it up to two names to which he or she objects and each party may number the remaining names in order of preference.

• Within seven days of receiving the list, each party must return the list (with names deleted and/or numbered to indicate preference or with no changes made) to the society. If a party fails to return the list within seven days of receiving it, the party is deemed to have accepted all of the names on the list.

• The society then has seven days to appoint a mediator, taking into account a number of criteria, including the preferences indicated by the parties. Other criteria to be considered by the society are:

  • the need for the mediator to be impartial,
  • the qualifications of the mediator,
  • the mediator's fees,
  • the mediator's availability, and
  • any other consideration likely to result in the selection of an impartial, competent and effective mediator.

Can the society select a mediator whose name was not on the list delivered to the parties?
Yes, but only if all of the names on the list have been deleted by the parties.

Are there any exemptions to the requirement to attend a pre-mediation meeting and a mediation session?
Yes. Exemptions to the requirement to attend a pre-mediation meeting and a mediation session are allowed in limited circumstances, such as when all parties have already participated in a mediation session in relation to the same dispute, or if a judge orders that one or more parties is exempt from attending the mediation. Also, the Notice can only be used once in connection with the same family law proceeding, unless the court orders otherwise.

What if a party uses the Notice to Mediate to trigger early mediation and more information is required for the mediation to be productive?
A party can apply to the court for an order that the mediation be adjourned to a later date. In deciding whether to grant an adjournment the court must take into account whether the mediation will more likely be successful if it is postponed to allow the parties to acquire more information.

What happens if a party simply refuses to participate in the mediation?
If a party fails to comply with a provision of the Notice to Mediate (Family) Regulation any of the other parties may file an Allegation of Default and make application to the court for an order. If this occurs the court has a wide range of powers; for example, the court may order that a party attend one or both of a pre-mediation meeting and mediation session, and/or stay the action until the party attends one or both of a pre-mediation meeting and a mediation session. The court may also make any order it considers appropriate with respect to costs.

Do I have to use the Notice to Mediate if I want to have my dispute mediated?
No, but in order for the dispute to be mediated (without using the Notice to Mediate), all parties must voluntarily agree to the mediation, and this includes agreeing on a mediator.

If all the parties don't agree to mediation voluntarily, what is the point in forcing unwilling parties to mediate? Isn't it a contradiction to require someone to mediate?
The Notice to Mediate process requires the parties to attend a single mediation session; it does not require them to settle the dispute. The experience in many other jurisdictions, and the experience with B.C.'s Notice to Mediate process to-date, is that mediation works even when a party is forced to mediate. The Notice to Mediate process for motor vehicle personal injury actions has been in place in B.C. for ten years. It has been used in over 23,000 actions, with settlement rates, in or shortly after mediation, of approximately 80 per cent.

Who pays the mediator, and what will it cost me?
The cost of the mediation must be paid equally by the parties, unless the parties agree to some other cost-sharing arrangement. The hourly rates of mediators vary, and this is a factor to consider in selecting a mediator. You will also have to pay for your lawyer if he or she represents you at the mediation.