Not all family disputes need to end up in a family law court trial—including divorces.
Spouses often fail to see eye to eye on a variety of matters concerning divorce but it is generally in the interest of neither party to end up in a Vancouver courtroom. Every opportunity will be provided for you to resolve matters using less adversarial measures than litigation.
If you are keen on mediation but your spouse is reluctant to attend, what can you do? Can you force your ex to attend mediation?
It’s possible if you seek a notice to mediate but that may not always be the best route towards an amicable agreement….
What is a notice to mediate?
You may decide to serve your spouse with a notice to mediate, which effectively forces them to attend a mediation session unless one of the following applies:
- A protection order under the Family Law Act or peace bond under the Criminal Code has been made against one of the parties
- The mediator finds that mediation is inappropriate or would not be productive
- Either party is relieved of the requirement to attend mediation by court order
What happens after a notice to mediate is issued?
To force your spouse to mediate about your divorce or other family law issue, you need to serve them with a notice to mediate at least 90 days before the intended mediation date.
Then, within 14 days of serving the notice, you must agree with your spouse on who will act as mediator.
The party who issues the notice to mediate maintains some control over the process and should set a mutually convenient mediation date—especially if lawyers will also be attending.
What if you cannot agree on a mediator?
If you and your spouse disagree about who to mediate your case, you can request that Mediate BC appoints an independent mediator from its roster.
Can you send a representative or do you have to attend mediation in person?
Either party required to mediate under a notice to mediate can send a representative (who may be a lawyer or other party) in their stead, providing that person is:
- Familiar with all relevant facts of the case
- Authorized to settle on behalf of the spouse, or
- Readily able to contact the party for instructions to settle
Do you need a lawyer at mediation?
A lawyer doesn’t need to attend mediation with you but it is often a good option. Given the importance of the decisions usually made at these sessions, you should give it serious consideration.
Mediation avoids much of the formality, procedural complexity, and time constraints of a court appearance but the finality of decisions made there may ultimately be the same.
The presence of a lawyer could, therefore, provide the peace of mind that any agreement is in your best interests—particularly when the financial stakes are high.
Legal counsel can also help you make decisions without unnecessary delays. A mediator cannot provide legal advice for either party so if advice is needed within the session, it is best for the lawyer to be present. If the lawyer cannot attend in person, it is often possible to maintain communication by telephone or video link.
Often, if an agreement is reached in mediation, the mediator will require that each party takes independent legal advice before signing a legally binding agreement. Again, this is an indication of the importance surrounding these matters and the finality of decisions made.
Sometimes, what the spouses agree on in mediation is drafted into a “minutes of settlement” document that both parties then sign.
The spouses’ divorce lawyers will then create a separation agreement or consent order that covers all of the main points and becomes legally enforceable.
Are you bound by the terms of a mediated agreement?
You may be bound by the terms of the agreement you make as a result of mediation, once it is signed: all the more reason for a lawyer to be present.
Sometimes, if no lawyers are present, the “minutes of settlement” includes a clause that legal enforceability is contingent upon both parties first taking legal advice. This is a necessary safeguard against parties making decisions that are not in their best interests and which could later lead to disputes and litigation.
Having a lawyer accompany you at mediation is often advisable regardless of who filed the notice to mediate. Even if a lawyer does not attend your session(s), it is highly advisable to take independent legal advice before signing a mediated agreement.
Are there any downsides to mandatory mediation?
Mandatory mediation has worked for many couples with family law issues but it pays to be aware of the potential drawbacks to the process too:
- Mediation is best when it is consensual—as good faith and compromise is a necessary component of successful mediation
- A spouse forced to participate may not be so willing to negotiate
- If there is no hope of a positive settlement, it could be a waste of money (costs are normally shared between participants)
- It can waste time if a trial is almost inevitable anyway
- In the wrong hands, it can be used as a stalling strategy or a way to discover information from the other spouse
- Mediation cannot be used to settle all disputes (especially if a legal precedent needs to be set)
- There is no guarantee of a settlement
- The process depends partly on the competence of the mediator
How can you prepare for divorce mediation?
Before pushing for mandatory divorce mediation, it is best to discuss your dispute with your divorce lawyer, who will need to understand more about the relationship with your ex-spouse and your settlement objectives.
If you decide that mandatory mediation is the best option, your lawyer can help you with the application.
In preparation for your mediation:
- Be clear on your expectations and potential conditions
- Ensure that your expectations are communicated to the other party
- Be prepared to compromise
- Ensure you have all of the necessary documentation for full financial disclosure
- Understand your rights and obligations
To discuss the suitability of mediation in your case, speak with a lawyer at Spectrum Family Law in Vancouver. We are ready to listen and advise you of your options during an initial consultation
It is an unfortunate reality that many marriages and common-law relationships break down, ending in separation or divorce. If that happens to you, there will be many issues to resolve as you and your partner attempt to unwind your lives together and move forward.
Family disputes can get complicated and costly, and the prospect of going to court may leave you feeling uncertain and frightened. However, litigation is not the only way to settle a family-related dispute – in fact, most cases are settled outside the courtroom, through processes of negotiation, mediation, and arbitration.
Our main hub for British Columbia is located in the heart of Vancouver. That said, we serve the entire province of BC. We have the infrastructure to work with any of our clients virtually — even the furthest regions of British Columbia.
We also have a dedicated intake form to help you get the ball rolling. Our intake team will review your specific case and advise you on the next steps to take as well as what to expect moving forward. That’s the best way to schedule an appointment
Our offices are generally open 8:30 a.m.—4:30 p.m., Mon—Fri.
Kasia was born and raised in Vancouver, British Columbia, where she completed her Bachelor’s degree at the University of British Columbia. She went on to obtain her Juris Doctorate with Honours from Bond University in Australia.