How Does a Notice to Mediate Work in a BC Family Case?

If you have a family case in the BC Supreme Court, you may hear that someone can serve a Notice to Mediate. It is a formal way to start mediation without needing the other person to agree first.

This article explains when the notice can be used, the deadlines, who pays, what can happen if someone does not take part, and what to do with an agreement afterward. Your own facts matter, so a lawyer can confirm how this applies to you.

This article covers the law of British Columbia.

What the Notice to Mediate (Family) process is

The Notice to Mediate (Family) Regulation process lets any party to a family law proceeding serve a notice requiring the parties to mediate. Mediation is one form of family dispute resolution, meaning a way to try to resolve disputed issues outside court.

If everyone already agrees to mediate and agrees on a mediator, you can skip the formal notice.

Under the Supreme Court Family Rules, mediation is not a general mandatory step, but the court can require parties to attend mediation, a settlement conference or another dispute resolution process. The notice is a separate process that creates its own obligations once it is served.

Timing and deadlines

A party may serve the notice at any point between 90 days after the first response to family claim is filed and 90 days before trial.

• The parties must agree on a mediator within 14 days of delivery of the notice.
• Mediation must take place within 60 days of the mediator's appointment.
• Mediation must also happen no later than 14 days before trial.
• All parties can agree to a later date, or the court can order one.

Because these time limits are short, it is worth thinking about mediator choices before you serve or receive a notice.

Screening, fees and lawyers

Each party attends a separate pre-mediation meeting. The mediator screens for power imbalance, domestic violence and abuse, and discusses independent legal advice. Family violence can include psychological or emotional abuse such as intimidation, coercion or threats.

Mediator fees are generally split equally among the parties unless they agree otherwise, and each party pays its own lawyer if it has one at the mediation. The mediator may end the process if mediation seems inappropriate or unproductive.

Only a mediator qualified as a family dispute resolution professional may conduct a mediation in a family law dispute. Ask any mediator about their qualifications before you agree.

One use, exemptions and what happens if you do not comply

The notice can generally be used only once per proceeding unless the court orders otherwise. Exemptions exist, for example when all parties have already mediated the same dispute or when a judge orders an exemption.

A party who fails to comply can face a Declaration of Default and a court order to participate, a stay of the action, or costs.

At a judicial case conference the judge may also refer the parties, with consent, to another family dispute resolution professional. Applications for a consent order are exempt from the conference requirement.

After mediation and what to do next

A written agreement means one that is in writing and signed by all parties. You can file it in court by attaching it to a requisition in Form F17.1, and the court may then enforce it on application under Part 10.

A court may also incorporate all or part of a written agreement into an order. If a later order differs from the agreement, the order replaces the part that provides differently. For a consent application, the applicant files a requisition in Form F29, a draft order in Form F33, and evidence of consent.

Some agreements have extra rules. A parenting agreement can be set aside or replaced if it is not in the child's best interests. A witnessed property agreement can be set aside only on limited grounds, or if it is significantly unfair.

• Note the date the first response to family claim was filed and your trial date.
• Think about mediators and their qualifications before the 14-day window starts.
• Prepare for the separate screening meeting, including any safety concerns.
• Gather financial documents, since you must give full and true information.
• Speak with a lawyer before signing any agreement.

Frequently asked questions