Family Mediation in BC: How It Works and When It Does Not

Most separating couples in BC never have a judge decide their case. Many settle through negotiation, and mediation is one of the most common ways to get there: a neutral person helps you and your former partner work through the issues and reach an agreement you both sign.

Mediation can save time, money and stress, but it is not right for every family, and an agreement reached in mediation is only as good as the information and advice behind it. This guide explains how family mediation works in BC, when it does not, and where a lawyer fits in.

What family mediation is

Mediation is a confidential and usually voluntary process in which a neutral mediator helps two people negotiate. The mediator does not take sides and has no power to decide anything. Instead, they keep the conversation on track, help each person understand the other's concerns, and test ideas for settlement. If you reach an agreement, it is written up for you both to sign.

BC law actively encourages this. The Family Law Act says one of its purposes is to encourage parties to resolve family law disputes through agreements and appropriate family dispute resolution before going to court. The federal Divorce Act says parties to a divorce proceeding must try to resolve their issues through a family dispute resolution process, to the extent it is appropriate to do so, and lawyers acting in those proceedings must encourage their clients to try unless it would clearly not be appropriate.

Mediation can cover any of the usual issues: parenting arrangements and guardianship, child support, spousal support, and dividing property and debt. You can mediate everything or just the issues you are stuck on.

How mediation usually works

Every mediator runs things slightly differently, but most family mediations follow a similar pattern:

• Intake and screening. Before you sit down together, the mediator meets each of you separately. Under the Family Law Act, a family dispute resolution professional must assess whether family violence may be present and how it could affect safety and each person's ability to negotiate a fair agreement.
• An agreement to mediate. You sign a contract with the mediator that sets out the process, confidentiality and fees.
• Disclosure. Each of you must give the other full and true information to resolve the dispute, a duty set out in section 5 of the Family Law Act. In practice that means income documents, tax returns, account statements, property values and debts. Our guide to financial disclosure after separation explains what is usually exchanged.
• Sessions. Joint or separate meetings (sometimes called shuttle mediation, where the mediator moves between rooms) to work through options. Sessions can often be held online.
• A written result. The mediator may prepare a summary or memorandum of the terms. That is then usually turned into a formal separation agreement or consent order.

The Notice to Mediate in Supreme Court cases

If a family case has already started in the BC Supreme Court, either party can require the other to mediate by serving a Notice to Mediate (Family) under a provincial regulation. The main rules are:

• The notice can be served no earlier than 90 days after the first response to the family claim is filed, and no later than 90 days before trial, unless the court orders otherwise.
• The parties must jointly appoint a mediator within 14 days of service. If they cannot agree, either can apply to a designated roster organization to choose one.
• The mediator must hold a separate pre-mediation meeting with each party, screen for power imbalance and family violence, and discuss the importance of independent legal advice.
• Each party must deliver a Statement of Facts and Issues at least 14 days before the session, and the session generally happens within 60 days of the mediator's appointment.

There are exemptions. For example, a party need not attend if there is a protection order against the other party, if the mediator decides mediation is not appropriate, or if the court exempts them because attending would be impracticable or materially unfair. Only one mediation can be initiated this way in a proceeding unless the court orders otherwise.

When mediation does not work well

Mediation depends on two people being able to negotiate safely and honestly. It may be a poor fit, or need special arrangements, where:

• There is family violence, coercive control or fear of the other person.
• One person is hiding income or assets, or refuses to provide documents.
• There is an urgent risk, such as a parent threatening to leave with a child or a spouse about to sell or mortgage property.
• One person is using delay as a tactic, or a court order is needed to protect assets or set interim support.
• There is a large imbalance in knowledge or bargaining power that cannot be managed.

In those situations, court steps may be needed first, or alongside a negotiated process. A mediator can also end the process if they conclude it is not appropriate or will not be productive.

Why you should get legal advice alongside a mediator

A mediator is neutral. They cannot tell you whether a proposal is fair to you, what a court would likely order, or what you are giving up. That is the job of your own lawyer. Many people meet with a lawyer before mediation to understand their rights, check in between sessions, and have the final agreement reviewed before signing.

This matters because a signed agreement is binding. The Family Law Act says an agreement about a family law dispute binds the parties whether or not a professional was involved and whether or not it is filed with a court. A written property agreement witnessed by at least one other person can be set aside by the Supreme Court only in limited circumstances, such as failure to disclose significant property or debts, one spouse taking improper advantage of the other's vulnerability, or a spouse not understanding the nature or consequences of the agreement. Advice and full disclosure make an agreement much harder to attack later. Our article on what separation agreements settle and when they can be set aside goes into more detail.

Two other points are worth knowing. Parenting terms must be made in the best interests of the child only, and family dispute resolution professionals must tell you so. And the two-year time limits for property division and spousal support claims are suspended while you are engaged in family dispute resolution with a family dispute resolution professional, which includes a qualifying mediator, but you should not assume a particular process counts without checking.

Preparing for mediation

You will get more out of mediation if you arrive organised. Gather your financial documents, think about what matters most to you and where you can be flexible, and write down a realistic plan for the children's schedule. If your case is in Provincial Court, you may also go through the early resolution process, which includes at least one consensual dispute resolution session in many registries.

Going into mediation? Get advice before you sign

Our family lawyers can advise you before and during mediation, review a draft agreement, and help you decide whether mediation suits your situation.

Call 604-259-2844 or send us a message to arrange a consultation at our Vancouver office.