Can I Use Mediation if There Has Been Family Violence in BC?

If you have experienced abuse from a former partner, the idea of sitting down to negotiate with them can feel unsafe or unfair. You may also worry that you will be pushed into mediation before you are ready, or that a court will think badly of you for saying no.

This article explains how British Columbia law treats mediation where family violence is a concern: what counts as family violence, how screening works, when mediation is and is not required, and what other options exist. It is general information, not legal advice, and your situation may call for a conversation with a lawyer.

This article covers the law of British Columbia.

What the law counts as family violence

Family violence under the Family Law Act is not limited to physical harm. 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.

This matters because controlling or threatening behaviour can make it hard to negotiate freely, even when no one has been physically hurt. If you are unsure whether what you experienced counts, say so when you are screened and ask for an explanation.

How screening works

A family dispute resolution professional you consult must assess, in accordance with the regulations, whether family violence may be present. That group includes a family justice counsellor, a parenting coordinator, a lawyer advising a party, a mediator and an arbitrator. If violence may be present, the professional must consider how far it affects your safety or a family member's safety, 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 they know of that may help. They must also tell you that agreements and orders about guardianship, parenting arrangements and contact with a child must be made in the child's best interests only.

Mediators must be qualified to act. A mediator qualifies as a Law Society of British Columbia member in good standing who meets its training and practice requirements, or by meeting other listed qualifications, which include at least 14 hours of family violence training. In the Notice to Mediate (Family) process, each party attends a separate pre-mediation meeting where the mediator screens for power imbalance, domestic violence and abuse.

Is mediation required?

The Family Law Act imposes no general mediation-first rule, though parties must follow any regulation requirements about mandatory family dispute resolution or prescribed procedures. In Supreme Court, the rules do not make mediation mandatory, although the judge at a judicial case conference may mediate an issue or refer the parties to a family justice counsellor. The court can also require parties to attend mediation or another dispute resolution process.

In an Early Resolution Registry in Provincial Court, parties must try at least one consensual dispute resolution session. That is not required if a needs assessor finds you cannot access these services, or if a needs assessor or dispute resolution professional finds participation is not appropriate. The needs assessor considers whether there is any risk of family violence. Which courthouses are Early Resolution Registries varies, so check the current list.

If a formal Notice to Mediate (Family) is used, the mediator may end the process if mediation seems inappropriate or unproductive.

Other options if mediation does not feel safe

• Family justice counsellors help with agreements on parenting, contact and support, explain the court process, and give short-term emotional support and referrals; they do not give legal advice. Their services are free, and you do not have to start a court case to use them.
• A family justice counsellor may, subject to a court order, grant an exemption from all or part of a prescribed process.
• Going to court is an option. In Supreme Court, a judicial case conference generally comes before a notice of application can be served, with exceptions.
• Lawyer-to-lawyer negotiation or other forms of family dispute resolution, such as collaborative family law or arbitration, may suit some people. Whether they are safe for you depends on the facts.

Some people ask about meeting a mediator separately rather than in the same room. Whether that is possible depends on the mediator and the process, so ask directly before you agree to anything.

What to do next

• If you are in immediate danger, contact emergency services first; the rest can wait.
• Tell any mediator, counsellor or lawyer about the violence at the start, in your own words.
• Ask how they screen, what the setup would be, and whether you can stop at any time.
• Ask about alternatives and who can help you with safety planning.
• Do not sign anything you do not understand; get legal advice first.
• Keep notes, messages and documents that show what happened.

Frequently asked questions