Mediation vs Arbitration in BC Family Law: What Is the Difference?

When you separate, you do not always have to go to court to settle things. British Columbia's Family Law Act recognizes several ways to resolve a dispute outside court, and mediation and arbitration are two of the best known.

They sound similar but work very differently. In one, you stay in control of the outcome. In the other, you hand the decision to someone else. This article explains the difference in plain words so you can talk through the options with a lawyer.

This article covers the law of British Columbia.

What each process means

Family dispute resolution is a process parties use to try to resolve disputed issues outside court. It includes help from a family justice counsellor, parenting coordinator services, mediation, arbitration and collaborative family law.

In mediation, a neutral mediator helps you and the other person reach your own agreement. The mediator does not decide for you. In arbitration, the arbitrator hears the dispute and makes a decision, called an award.

Nothing in the Family Law Act itself imposes a general mediation-first rule, although regulations or court rules can require certain steps in some settings.

Who decides and how binding it is

A written agreement means one that is in writing and signed by all parties. If a later agreement changes an earlier one, each changed part of the earlier agreement is treated as revoked and the unchanged parts stay in effect.

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 can qualify 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, including 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 who meets set experience, training and insurance requirements.

There is a limit for the second group. 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.

Before an arbitration starts, the arbitrator must enter a written agreement to arbitrate with you and the other party. The arbitrator must also give written confirmation that they meet the qualification requirements.

Challenging the result and the limits on agreements

An arbitration award is not easy to undo. You can ask within 30 days of receiving it to correct computational, clerical or typographical errors, unless the parties agree otherwise. You may appeal to the Supreme Court only on a question of law or a question of mixed law and fact, and the time limit to start an appeal is 40 days.

The court may also set aside or change an award on grounds such as fraud or duress, no reasonable chance to be heard, or the arbitrator acting outside their authority.

Mediated agreements have their own limits, depending on the subject:

• Parenting: an agreement is binding only if made after separation, or when you are about to separate and intend it to take effect on separation. A filed agreement is enforceable like a court order, but the court must set aside or replace all or part of it if it is not in the child's best interests.
• Child support: the agreement is binding only if made after separation or when you are about to separate and intend it to take effect on separation. A court may depart from the guideline amount if the parties consent or have an agreement and the court is satisfied that reasonable arrangements have been made for the support of the child.
• Property and debt: a witnessed agreement can be set aside only in listed circumstances, such as failure to disclose significant property or debts, or if it is significantly unfair.
• Spousal support: a witnessed agreement can be set aside on similar grounds, including significant unfairness.

Safety, fairness and choosing between them

A family dispute resolution professional you consult must assess whether family violence may be present. If it may be, they must consider how it affects safety and your ability to negotiate a fair agreement. Family violence includes psychological or emotional abuse, such as intimidation, harassment, coercion or threats.

The professional must also discuss the advisability of different types of family dispute resolution and tell you about helpful resources. Whichever route you choose, each party must give the other full and true information to resolve the dispute.

Mediation may suit you if you want to keep control and expect to be able to talk, with support. Arbitration may suit you if you want a private decision-maker to settle a stalled issue. Independent legal advice is not required for a separation agreement to bind you, but missing advice can matter if later you argue you did not understand it or that something was not disclosed.

What to do next

• List the issues in dispute: parenting, child support, spousal support, property and debt.
• Gather your financial records so you can give full and true information.
• Ask any arbitrator to confirm in writing that they meet the qualification requirements, and ask any mediator whether they are qualified as a family dispute resolution professional.
• Tell the professional about any safety concerns so they can assess them.
• Have a lawyer review any agreement or award before you sign or file it.

Family justice counsellors can help with agreements on parenting, contact and support. Their services are free and you do not have to start court to use them, but they do not give legal advice. Because the right route depends on your facts, a lawyer can help you compare your options.

Frequently asked questions