Notice to Mediate (Family) Regulation

On this page

• Notice to Mediate process
• When the Notice to Mediate can be used
• Screening for power imbalance, domestic violence and abuse
• How the Notice to Mediate process works
• Agreeing on a mediator
• Appointing a mediator through a roster organization
• Exemption from pre-mediation meeting and mediation session
• Mediation before all information is gathered
• Refusing to participate in mediation
• The advantage of the notice to mediate process
• Cost

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.

If all parties to an action voluntarily agree to mediation, and also agree on a mediator, it is not necessary to use the Notice to Mediate process.

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 participating in a 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 comply with a requirement 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 participate in a pre-mediation meeting or a mediation session
• Staying the action until the party participates in one or both of these
• Making orders about costs

The advantage of the notice to mediate process

The Notice to Mediate requires parties to participate in 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 does not initially want to mediate.

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.