Mediation vs Arbitration in BC Family Law: Key Differences

If you are separating and want to stay out of court, mediation and arbitration are two common options. They sound similar, but they work very differently, especially on who makes the final decision.

This article compares them in plain terms so you can see what you give up and gain with each. A lawyer can help you choose based on your facts.

This article covers the law of British Columbia.

The core difference: who decides

Both are forms of family dispute resolution, meaning a process parties use to try to resolve disputed issues outside court. In mediation, a neutral mediator helps you and the other person reach your own agreement. In arbitration, the arbitrator hears the dispute and makes a decision, called an award. That award is final and binding on all parties, subject to the Act.

Who can act as a mediator or arbitrator

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

Only a qualified arbitrator may conduct a family arbitration. The arbitrator must be a Law Society of BC member in good standing, or a psychologist or registered social worker with at least 10 years of family-related practice, 40 hours of arbitration training, 30 hours of family law training, 14 hours of family violence training, annual professional development and liability insurance.

There is a limit on non-lawyer arbitrators. A psychologist or social worker arbitrator may act only on parenting arrangements, contact with a child, or child support, and child support is limited to straightforward cases, for example where all children are under 19 and the payor's annual income is not more than $150,000 and is not self-employment or partnership income.

Starting an arbitration

Before starting a family arbitration, the arbitrator must enter a written agreement to arbitrate with the parties, and must give the parties written confirmation that the arbitrator meets the qualification requirements. Read both documents carefully, because you are agreeing to hand the decision to someone else.

Because an arbitration award is final and binding on all parties, subject to the Act, it is worth understanding the process fully before you sign. How this applies to your situation depends on the facts, so it is worth confirming with a lawyer.

Enforcing or appealing an award

• Enforcement: a certified arbitration award is filed by attaching it to a requisition in Form F17.3. Once filed in court, it is enforceable under the Act as if it were a court order.
• Corrections: a party can ask within 30 days of receiving the award to correct computational, clerical or typographical errors, unless the parties agree otherwise.
• Appeal: a party may appeal to the Supreme Court only on a question of law or a question of mixed law and fact, and the time limit is 40 days. The court may confirm, amend or set aside the award, or send it back to the arbitrator.
• Other grounds: the Supreme Court may set aside or change an award on grounds such as fraud or duress, no reasonable chance to be heard, or the arbitrator acting outside the arbitrator's authority.

An award cannot simply be reopened because you disagree with the result, so be sure you are comfortable with the process before you agree to it.

What to do next

• Decide how much control you want over the final outcome.
• Tell any professional about family violence or safety concerns, since they must assess for it.
• If you choose arbitration, make sure you receive the arbitrator's written confirmation of qualifications; if you choose mediation, ask the mediator how they qualify.
• Ask a lawyer about the issues involved, such as parenting, support or property.
• Consider getting legal advice before you sign an agreement; the Family Law Act does not require it for a separation agreement to bind you, but missing advice can matter if the agreement is later challenged.

Agreements and orders about guardianship, parenting arrangements and contact with a child must be made in the best interests of the child only. The court must set aside or replace all or part of a filed parenting-arrangements agreement if it is satisfied the agreement is not in the child's best interests.

Frequently asked questions