Sadly, the Notice to Mediate Regulation has languished underused in all parts of the province except Victoria, as I found out when I conducted an informal survey of my former colleagues earlier today. This is really unfortunate as the regulation could be a very useful tool in family law matters, especially those in which a trial is looming. Why? Trials are extraordinarily expensive; mediation much less so.
The regulation is straightforward and easy to follow. Here's how it works.
Serve Notice
Any party can begin the process by serving a Notice to Mediate (Family) in Form 1 on every other party to the action. The Notice cannot be served any sooner than 90 days after the Response to Family Claim is filed, and no later than 90 days before the trial is set to start.
Pick a Mediator
The parties then have 14 days to pick a mediator they all like.
If they can't agree on someone within that period, any party can apply to a roster organization for the appointment of a mediator. (A roster organization would be a group like Mediate BC.) The roster organization then has 7 days to provide all parties with a list of six potential mediators.
Each party then has 7 days to strike the two mediators they like least off the list, number the remaining four mediators in order of preference, and send the list back to the roster organization. A party who fails to get this done within the 7 day period is deemed to accept all of the mediators.
The roster organization then has 7 days to appoint a mediator from the remaining names on the original list, taking into account the parties' preferences as well as important things such as the mediator's experience and availability. If there are no names left from the original list, the roster organization can appoint another person as mediator.
The roster organization must then notify all parties of the appointed mediator.
Pre-Mediation Meeting
The mediator must have a pre-mediation meeting with each party. At this meeting, the mediator is required to screen for family violence and imbalances of power, and determine whether the case is suitable for mediation. The mediator must then discuss a number of practical matters including:
- the importance of obtaining legal advice;
- the issues that will be covered;
- the documents that need to be exchanged between the parties;
- whether any expert reports need to be prepared; and,
- scheduling.
The party will then sign the mediator's mediation agreement.
Although there are a few exceptions, the regulation requires each party to attend the pre-mediation meeting, with or without a lawyer, and to sign the mediation agreement.
The Mediation Session
A mediation session must be held within 60 days of the appointment of the mediator, unless everyone agrees to a later date or the court makes an order to that effect.
Each party must send a Statement of Facts and Issues in Form 2 to the mediator at least 14 days before the mediation session is to begin; this form is used to describe the facts and legal basis for the position each party is taking. The mediator will distribute copies of each party's Statement.
On or before the start of the mediation session, the parties must sign a Fee Declaration in Form 3. The Declaration sets out the cost of the mediation and says how the mediator will be paid, either equally by both parties or on some other basis. Although the Declaration is binding on the parties, they can also agree during the mediation that a party will be paid back for his or her share of the mediator's fees.
The mediation session will then begin, with or without lawyers, and, hopefully, wrap up with a settlement.
Conclusion of Mediation
A course of mediation is considered to be concluded when:
- the parties reach an agreement on all issues; or,
- the mediation sessions ends without an agreement and without an agreement to continue in mediation.
The mediator must then deliver a Certificate of Conclusion of Mediation in Form 5 to any party who wishes one.
Confidentiality
The regulation provides that no one can disclose, or be made to disclose, any information, documents or opinions obtained in the course of mediation. This applies to the parties, their lawyers and the mediator.
This prohibition applies to the family law action itself, to any other civil action and to any criminal proceeding. The prohibition does not cover the Fee Declaration or anything the parties agree can be disclosed.
Noncompliance
If a party doesn't comply with any of the requirements of the regulation, another party can take the problem to court by serving all other parties with an Allegation of Default in Form 4 along with an affidavit explaining the noncompliance.
If the court concludes that the party failed to comply as claimed, the court may:
- adjourn the mediation or make an order that the mediation session occur;
- adjourn the hearing on the Allegation of Default, and order that a party attend the mediation session;
- adjourn the hearing on the Allegation, and order that a party deliver a Statement of Facts and Issues;
- adjourn the family law action until the parties attend the mediation session; and
- make an order for costs.
Forms
The court forms are found at the end of the regulation, here.
I understand from my colleagues in Victoria, and the few in Vancouver who use the regulation, that it can be very effective and that they have each had a number of cases that have settled as a result of course of mediation commenced under the regulation. I can see the regulation being particularly useful where a lawyer or a party is being uncooperative and refusing to engage in settlement discussions.
This regulation is a simple, excellent and affordable, but rarely used, tool. Use it. Please.
