Can I Make My Spouse Go to Family Law Mediation?

Family law mediation is a wonderful option to reach a family law agreement in Vancouver or Surrey, BC. It is much less costly and much more timely. But what if the other party does not want to attend mediation?

Read below for the most commonly asked questions about this subject:

Can I Force My Spouse to Attend Family Law Mediation?

Yes, you can. Mediation is generally a voluntary process; however, it is possible to “force” the other party to attend mediation by serving them with a Notice to Mediate.

There are some exceptions to this rule:

• A party does not have to attend mediation if a Protection Order is made under the Family Law Act (“FLA”) or Peace Bond made against one of the parties under s. 810 of the Criminal Code; and
• If the mediator determines after the pre-mediation call that mediation should not proceed because it is inappropriate or would not be productive, or
• One party can also apply to court to be relieved of the requirement of attending mediation.

If I am Served with a Notice to Mediate, Do I Have to Attend Myself or Can I send Someone on My Behalf?

The Notice to Mediate regulations do not require the parties to attend mediation themselves. Instead, they can send a representative to attend mediation on their behalf if the representative is:

• familiar with all relevant facts,
• has full authority to settle, or
• can readily contact the party for instructions to settle.

The regulations do not require a party to bring their lawyer to mediation.

How Does the Notice to Mediate Process Work?

If you want to compel your spouse to attend family law mediation, you will need to do the following:

1. At least 90 days in advance of the mediation, serve your spouse with the Notice to Mediate;
2. Within 14 days of serving the Notice to Mediate, you and your spouse must agree on the identity of the mediator; 
3. If you cannot agree on a specific mediator, you can call Mediate BC, and they will appoint a mediator on your behalves;

What if My Spouse and I Do Not Agree on the Mediator?

It is common for spouses not to agree on the identity of the mediator in BC. In that case, the parties can ask for a mediator to be appointed from the roster, which is administered by Mediate BC.

Can I Attend Family Law Mediation Without a Lawyer?

Yes, this is an option. However, when parties attend mediation without lawyers, the mediator will often require the parties to obtain independent legal advice prior to entering into a separation agreement or consent order. The parties might sign a “minutes of settlement” that are then drafted as a separation agreement or consent order by the parties’ lawyers.

Can I Pull Out of a Mediated Agreement if I didn’t have a Lawyer?

It depends. Let’s look at a sample case:

• In the case of C.C.R. v. T.A.R. one of the litigants, the defendant, issued a notice to mediate, forcing the other party, the plaintiff, to attend mediation. The plaintiff’s lawyer did not respond to the Notice to Mediate, and a mediator was appointed from the roster.
• The plaintiff’s lawyer advised his client to attend the mediation without him, as the lawyer’s practice was not to attend mediation with clients. The plaintiff’s lawyer also advised his client not to agree to anything further than an agreement in principle without first obtaining advice from his lawyer.
• The parties reached an agreement at mediation and signed minutes of settlement which included a term that the plaintiff would obtain legal advice on the agreement and provide confirmation of the agreement by a specific deadline. The plaintiff’s lawyer did not confirm the agreement by the deadline and informed the defendant’s lawyer that the agreement was not acceptable.
• The defendant’s lawyer brought an application to enforce the minutes of settlement reached at mediation.
• Justice Punnett found that the agreement was clearly made subject to legal advice and confirmation of acceptance, which did not occur, and therefore the agreement was not binding.
• Justice Punnett went on to say that he found the process, in that case, was not ideal and made further comments about best practices in family law mediation.

Should I Have a Lawyer Attend Family Law Mediation with Me?

Absolutely. On this issue, the words of Justice Punnet on the case above and the result speak for themselves:

Justice Punnett stated:

In my view the dynamics of mediation are such that attendance by counsel is to be encouraged. Counsel is unlikely to send their client off to court alone; given that mediation is intended, under the FLA, to bring final resolution to the issues, counsel should treat these dispute resolution processes as equally significant. The efficiency of mediation is undermined where counsel is absent from the mediation. While they can clearly give advice to their client respecting the proposed resolution, they do not have the benefit of experiencing the mediation process or seeing how the result was achieved. It may be that the Regulation should require counsel attend where the parties are represented — that would certainly have mitigated the difficulties that arose in this matter — but that is a decision for the legislature, not the courts. However, even if [counsel for the plaintiff] had attended the plaintiff would still be entitled to delay confirming a settlement in order to have time to fully consider it.

 

If it is not possible for counsel to attend in person, every effort should be made to have counsel available by telephone. If [counsel for the plaintiff] had been available to his client for discussion throughout the process the outcome may have been different. I note, however, that under the Regulation the party who issues the notice to mediate has a large degree of control over the process. As such they should attempt, where possible, to set the mediation for a date that is amenable to the other party and to counsel.

 

While it is always open to a party at mediation to state that they simply cannot agree, it frustrates the purpose and increases the expense to the parties if they purport to agree and then subsequently do not. In this case the plaintiff asserted his right to legal advice in an unusual manner: he signed the agreement, but included a “subject to advice” clause in its terms. I suspect that the status of the Agreement would have been clearer to both parties if the plaintiff had simply withheld his signature until such time as he was able to review the settlement with his counsel.

 

Finally, parties should make their expectations and any potential conditions clear prior to the mediation process itself. This will allow the other party time to consider their own position and, if necessary, to seek directions in advance from the court.

 

Justice Punnett’s comparison to mediation as a court appearance suggests that lawyers must attend with their clients. Often, when lawyers and litigants view mediation as another step in the litigation process, generally, lawyers view their attendance as necessary.   Additionally, when there are complex legal issues or financial issues, often it is important to have a lawyer attend mediation. If mediation is set on the eve of trial, and the parties want to resolve all issues to avoid trial, it is better to have a lawyer present to enter into a final agreement.

However, when parties are dealing with more personal issues rather than legal issues, a lawyer may not need to attend. Sometimes parties need the help of a neutral facilitator to work on the logistics of their separation, especially relating to parenting issues, and identify overlapping interests. In those cases, it may not be necessary to have a lawyer at mediation. But, as Justice Punnett stated, at the very least, a lawyer should be available by telephone during mediation to provide advice as issues arise, or it should be clear the agreement is subject to independent legal advice.

How to Prepare for my Family Law Mediation?

Before you attend any mediation, make sure:

1. You are fully prepared to attend mediation and are fully prepared to compromise;
2. Document disclosure is complete; and
3. You know of your rights and obligations.

Learn more about what family law mediation is

Learn more about the best family law mediators in BC

Learn more about what style of mediation suits you best

Learn more on how to prepare for your family law mediation 

At YLaw, we offer mediation services in addition to family lawyers who can assist you with mediation. Call us at 604-974-9529 or get in touch.