Notice to Mediate (Family) Regulation

Notice to Mediate process

The Notice to Mediate process allows any party to a family law proceeding in B.C. Supreme Court to require all other parties to the proceeding to mediate the matters in a dispute. Authority for the Notice to Mediate (Family) Regulation is contained in section 68 of the Law and Equity Act.

The Notice to Mediate (Family) Regulation applies to all family law proceedings in B.C. Supreme Court.

Please note: If all parties to an action voluntarily agree to mediation, and also agree on a mediator, the Notice to Mediate is unnecessary.

When the Notice to Mediate can 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.

Screening for power imbalance, domestic violence and abuse

The Notice to Mediate (Family) Regulation requires mediators to hold a separate pre-mediation meeting with each party, during which they must screen for power imbalance, domestic violence and abuse. 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 mediation would not be appropriate or productive.

How the Notice to Mediate process works

The party who wishes to mediate 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.

Agreeing on a mediator

If parties are unable to agree on a mediator within 14 days, any party may apply to a roster organization designated by the justice to appoint the mediator. The  Alternative Dispute Resolution Institute of British Columbia (ADRBC)  is a roster organization for this purpose. The society maintains a list of trained and experienced mediators who have agreed to a code of conduct.

Appointing a mediator through a roster organization

The process that a roster organization must follow to select a mediator is set out in sections 8 to 11 of the Notice to Mediate (Family) Regulation.

Exemption from pre-mediation meeting and mediation session

Exemptions from a pre-mediation meeting and a mediation session are allowed in certain circumstances. These may include when all parties have already participated in a mediation session in 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 the same proceeding unless the court orders otherwise.

Mediation before all information is gathered

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.

Refusing to participate in mediation

If a party fails to carry out a provision of the Notice to Mediate (Family) Regulation, any of the other parties may file a Declaration of Default with the court.

If this occurs, the court has a range of powers, including:

• Ordering a party to attend a pre-mediation meeting or a mediation session
• Staying the action until the party attends one or both of these
• Making orders about costs

The advantage of the notice to mediate process

The Notice to Mediate requires the parties to attend a 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 for motor vehicle actions, is that mediation works even when a party is forced to mediate.

From 2002 to 2010, about 30,000 motor vehicle actions were mediated. About 24,000 resolved for an average settlement rate of about 80 per cent.

Cost

Mediators’ rates vary. The cost is generally shared equally between all parties, unless they agree to some other arrangement. Parties will also have to pay for their lawyers if they represent parties at the mediation.