Mediation After Family Violence in British Columbia: Your Options

If you have experienced abuse from a former partner, being told to "try mediation" can feel unsafe or unrealistic. Mediation means sitting down, in some form, with the person who hurt you and negotiating. Many people want to know whether they have to, and what happens if they say no.

This article explains how British Columbia law treats mediation where family violence may be present, how screening works, and what other options exist. It is general information, not advice for your situation. If you are in immediate danger, contact emergency services first.

This article covers the law of British Columbia.

Are you required to mediate?

The Family Law Act does not contain a general rule that you must mediate before going to court. Parties must comply with any requirements set by regulation about mandatory family dispute resolution or prescribed procedures. In practice, where mediation comes up depends on the court and the stage of the case.

In the Provincial Court, parties in an Early Resolution Registry must generally try at least one consensual dispute resolution session. That step is not required if a needs assessor finds the parties cannot access these services, or if a needs assessor or dispute resolution professional finds that taking part is not appropriate. The needs assessor is also expected to consider whether there is any risk of family violence.

In the Supreme Court, the rules do not make mediation mandatory, but the court can require parties to attend mediation, a settlement conference or another dispute resolution process. Because this varies by courthouse and by case, ask a lawyer or a family justice counsellor what applies to you.

How family violence screening works

Family violence is defined broadly. It includes psychological or emotional abuse, such as intimidation, harassment, coercion or threats, including threats about other people, pets or property. For a child, it includes direct or indirect exposure to family violence.

A family dispute resolution professional you consult must assess, in accordance with the regulations, whether family violence may be present. If it may be, the professional must consider how far it affects the safety of you or a family member and your ability to negotiate a fair agreement.

Based on that assessment, the professional must discuss with you whether various types of family dispute resolution are advisable, and must tell you about facilities and other resources that may help. They must also tell you that agreements and orders about guardianship, parenting arrangements and contact with a child are made in the child's best interests only.

• Only a mediator qualified as a family dispute resolution professional may conduct a mediation in a family law dispute.
• A mediator can qualify as a Law Society of British Columbia member in good standing who meets its training and practice requirements, or by meeting other listed qualifications that include at least 14 hours of family violence training.

Who can help, and what mediation can look like

Family justice counsellors help people reach agreements on guardianship, parenting arrangements, contact, and child and spousal support. They also work as accredited mediators and can give short-term emotional support and referrals, but they do not provide legal advice. Their services are free, and you do not have to start the court process to use them.

Family Justice Centres offer individual needs assessment meetings, which give you information about family law, your options and referrals to community services. A person may also be referred to a private mediator if the issue is not a family law dispute or is one a family justice counsellor is not trained to mediate.

How a mediation is set up, including whether you would be in the same room as the other person, is worth raising during screening. What is available and suitable depends on the mediator and the facts, so it is worth confirming with a lawyer.

If mediation is not right for you

Family dispute resolution is a process for resolving disputed issues outside court, and it includes help from a family justice counsellor, parenting coordinator services, mediation, arbitration and collaborative family law. Not every option suits every situation, and the screening described above is meant to help you and the professional decide what fits.

Going to court is another route. In the Supreme Court, a notice of application or supporting affidavit generally cannot be served before a judicial case conference has been held, subject to exceptions and relief the rules allow. Applications for a consent order are exempt from that requirement. At the conference the judge may mediate any issue and may refer the parties to a family justice counsellor or, with consent, to another family dispute resolution professional.

In an Early Resolution Registry in the Provincial Court, the steps before filing include an individual needs assessment with a family justice counsellor, the Parenting After Separation online course if applicable, and a consensual dispute resolution session if appropriate. Early resolution registries now include all Provincial Court registries in the Vancouver Coastal, Vancouver Fraser, Vancouver Island and Interior regions, and the early resolution services are free.

What to do next

You do not have to decide everything at once. A few practical steps can help you understand your options safely.

• Tell any professional you consult about safety concerns early, so they can carry out the family violence assessment.
• Ask whether a separate meeting, or a different arrangement from sitting together, is available and appropriate for you.
• Book an individual needs assessment with a family justice counsellor to learn about your options.
• Speak to a lawyer before signing any agreement, since a lawyer can explain what you are giving up. A filed parenting-arrangements agreement can still be set aside or replaced by the court if it is not in the child's best interests.
• Check which courthouse and registry would handle your case, since early resolution rules vary by location.

If you are unsure whether mediation is safe, that is a good reason to get legal advice before you agree to it.

Frequently asked questions