Our family law mediators, arbitrators and parenting coordinators always advise our clients that they should not try to negotiate their own family law settlement in the absence of proper legal advice given BEFORE NOT AFTER they make a deal.
Our BC family law mediation, arbitration and parenting coordination department is one of BC’s largest, with three experienced lawyers working diligently to help people mediate and arbitrate their family law matters.
The Vancouver mediators and arbitrators are also pleased to empower people to settle on a child focused parenting plan for their children through their parenting coordination services.
Mediation Goes Sideways When Lawyers Are Not Present
The recent BC Supreme Court case of C.C.R. v. T.A.R., points out pitfalls than can befall unwary litigants who attend a mediation without their lawyer or lawyers. Not having a lawyer present wastes time and increases cost and uncertainty to the parties. Mr Justice Punnett refused to enforce a mediated “tentative settlement” when the unrepresented party at the mediation received independent legal advice advising him not to agree to the “tentative deal” The Court went on to suggest best practices for mediation pursuant to a Notice to Mediate.
Judge Provides Family Law Act Mediation Guidelines
Here is what the Mr Justice Punnett said about a suggested family mediation procedure
[1] The defendant applies pursuant to Rule 11-3 of the Supreme Court Family Rules, B.C. Reg. 169/2009, for summary judgment based on the mediated terms of minutes of settlement signed by the parties on June 21, 2013. She also seeks an order transferring the file for all purposes from the Terrace registry to the Kelowna registry of this Court and for special costs of this application. In her application she also sought certain financial disclosure from the plaintiff but that has since been provided.
[2] The most contentious issue on this application deals with the relationship between the mediation process and the enforceability of any subsequent agreement. Put briefly, plaintiff’s counsel did not attend the mediation session, but had a clause inserted making the agreement subject to his review and confirmation. After he reviewed it and provided his client with advice, the plaintiff refused to confirm the agreement. The defendant says that this behaviour undermined the statutory policy in favour of out-of-court resolution and that as such the “subject to review” clause should be ignored and the agreement enforced. The plaintiff, on the other hand, says that his right to independent legal advice prior to completing any agreement must be respected. He says that as there was no confirmation, there is no binding agreement.
[33] The British Columbia Ministry of Justice in its explanatory guide to the FLA comments on Part 2, saying that “[f]amily dispute resolution offers simpler, speedier and less costly ways to resolve post-separation disputes and will further the best interests of children.” The Ministry also comments on s. 4, noting that “out-of-court dispute resolution processes and resolution through agreements are not simply add-ons to litigation but the preferred option”.
[34] Mandatory mediation under the Notice to Mediate (Family) Regulation is one of the out-of-court dispute resolution processes available to family litigants. As noted, that was the process selected by the defendant in this matter.
[35] Under s. 16 of the Regulation, the parties are required to attend the mediation session unless they are exempted from such attendance under ss. 23 or 25. The requirement that parties normally attend is premised on the reasonable assumption that all those involved must be present in order to effectively address the issues between them. In my view this is particularly important in family matters. This principle is further reinforced by s. 18, which provides that where a representative attends in place of a participant they must:
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(a) be familiar with all of the relevant facts on which the participant, on whose behalf the representative attends, intends to rely, and
(b) have full authority to settle, or have access at the earliest practicable opportunity to a person who has full authority to settle, on behalf of the participant.
[36] The Regulation does not require that counsel attend, however. Section 19 merely states “[a] participant or representative who attends a pre-mediation meeting or a mediation session may be accompanied by counsel” (emphasis added).
[37] Balanced against the policy in favour of out-of-court resolution is the policy regarding independent legal advice. In the family law context, where some parties may be represented and some not, legal advice is important “because it ensures that the spouses are fully aware of their statutory and common law rights and obligations. It safeguards against one spouse taking unfair advantage of another” (Bradshaw v. Bradshaw, 2011 BCSC 1103 at para. 49). As a result, mediators generally tell the parties that they should seek independent legal advice before finalizing any agreement. While a lack of independent legal advice would not necessarily vitiate a settlement, parties should still receive the opportunity to seek that advice prior to signing a final agreement.
[38] What occurred in this instance is not contrary to the FLA, the Rules or the Regulation. The Agreement was clearly made subject to legal advice and confirmation of acceptance. Such confirmation was not received. As a result, the Agreement is without effect.
[39] Further, the defendant’s policy arguments are not a basis to invalidate para. 26. It is not against public policy, or against the policy as set out in the FLA, for one party to seek legal advice prior to finalizing a mediated settlement. Accordingly, there is no agreement to enforce, and I cannot rely on the terms of the settlement to form the basis for a judgment.
Judge Sets Out Sensible Guidelines For Family Law Clients and Lawyers
[40] That being said, the process in this case was not ideal. In the interests of avoiding similar situations in the future, I intend to make a number of comments about best practices in family law mediation.
[41] 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 Mr. MacGregor had attended the plaintiff would still be entitled to delay confirming a settlement in order to have time to fully consider it.
[42] If it is not possible for counsel to attend in person, every effort should be made to have counsel available by telephone. If Mr. MacGregor 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.
[43] 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.
[44] 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.
