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 Notice to Mediate (Family) Regulation was expanded on March 29, 2012. Previously available as a pilot project in Nanaimo, Duncan, Victoria, Vancouver and New Westminster courts, the regulation is now effective provincewide.
Questions and Answers
What is the notice to mediate (family) process?
The notice to mediate (family) process enables any party to a family law proceeding in B.C. Supreme Court to compel all other parties to the proceeding to mediate the matters in a dispute in a private and safe environment. This process is being piloted in the Nanaimo, Duncan, Victoria, Vancouver and New Westminster registries of B.C. 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. The mediation takes place in a private, informal setting, where the parties participate in the negotiation and design of a settlement.
The hallmark of mediation is its focus on the interests (or needs) of the parties, as opposed to their positions on legal rights. Interests can be:
- substantive – needs such as money, control or resources;
- procedural – needs relating to the process or the way in which a dispute is resolved; and
- psychological – needs relating to feelings or emotions about the issue.
Interests are the driving force behind every dispute. A position is only a way of meeting those interests. By looking for these underlying interests, parties can create new options for settlement.
The mediator has no decision-making power; the dispute is settled only if all parties agree to the settlement.
Does the Notice to Mediate (Family) Regulation apply provincewide?
Yes. The Notice to Mediate (Family) Regulation applies to all family law proceedings in B.C. Supreme Court.
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 B.C. Supreme Court 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 response to family claim 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 they conclude 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 14 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 parties cannot agree on the choice of mediator?
If parties are unable to agree on a mediator within 14 days, any party may apply to a roster organization designated by the presiding court justice to appoint the mediator. The Mediate BC 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.
If a party applies to the society for appointment of a mediator, do parties have any opportunity for input into thee appointee?
Yes. The process that the society must follow in selecting a mediator is set out in sections 8 to 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 they object and 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 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 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 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 are 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 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 a mediation session and/or stay the action until the party attends one or both of these. 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 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 over 10 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 parties, unless 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. Parties will also have to pay for their lawyers if they represent parties at the mediation.
