Appendix B – Family Law Mediation, Arbitration and Parenting Coordination


Definitions

1.  In this Appendix:

“dispute resolution process” means the process of family law mediation, family law arbitration or parenting coordination;

“family law arbitration” means a process by which participants submit issues relating to their marriage, cohabitation, separation or divorce to an impartial person (the family law arbitrator) for decision;

“family law mediation”

(a)     means a process by which participants attempt, with the assistance of an impartial person (the family law mediator), to reach a consensual settlement of issues relating to their marriage, cohabitation, separation, divorce, children or finances, including division of assets, and

(b)     includes, without limiting the generality of the foregoing, one or more of the following acts when performed by a lawyer acting as a family law mediator:

(i)         informing the participants of and otherwise advising them on the legal issues involved,

(ii)        advising the participants of a court’s probable disposition of the issue,

(iii)       preparing any agreement between the participants other than a memorandum recording the results of the family law mediation. 

“parenting coordination” means a process by which an impartial person (the parenting coordinator), by agreement of participants or by court order, mediates a dispute with respect to the implementation of an agreement or a court order respecting the allocation of parenting time or parenting responsibilities, or contact with a child or makes a determination respecting that dispute that is binding on the participants;

“participant” means a person with issues relating to marriage, cohabitation, separation or divorce who has agreed to the intervention of an impartial person as family law mediator or arbitrator or parenting coordinator or is subject to a court order appointing such a person to assist in the resolution of such issues. 

[amended 01/2013, effective March 18, 2013]  

Disqualifications
2.   (a)     If a lawyer or a partner, associate or employee of that lawyer has previously acted or is currently acting for any of the participants to a dispute resolution process in a solicitor-client relationship with respect to any matter that may reasonably be expected to become an issue during the dispute resolution process, that lawyer may not act as a family law mediator or arbitrator or parenting coordinator for any of the participants;

(b)     If a lawyer has acted in a dispute resolution process for the participants, neither that lawyer nor any partner, associate or employee of that lawyer may act in a solicitor-client relationship for either participant against the other participant;

(c)     If a lawyer or a partner, associate or employee of that lawyer has acted in a dispute resolution process for the participants, neither that lawyer nor a partner, associate or employee of that lawyer may act for or against any person if to do so might require the lawyer to disclose or make use of confidential information given in the course of the dispute resolution process.

[amended 01/2013, effective March 18, 2013]

Obligations of family law mediator or arbitrator or parenting coordinator when participants unrepresented

3.  A lawyer who acts as a family law mediator or arbitrator or parenting coordinator for participants who are unrepresented must:

(a)     urge each unrepresented adult participant to obtain independent legal advice or representation, both before the commencement of the dispute resolution process and at any stage before an agreement between the participants is executed;

(b)     take care to see that the unrepresented participant is not proceeding under the impression that the lawyer will protect his or her interests;

(c)     make it clear to the unrepresented participant that the lawyer is acting exclusively in a neutral capacity, and not as counsel for either participant; and

(d)     explain the lawyer’s role in the dispute resolution process, including the scope and duration of the lawyer’s powers.

[amended 01/2013, effective March 18, 2013]  

Obligations of family law mediator or parenting coordinator

4.  Unless otherwise ordered by the court, a lawyer who acts as a family law mediator or parenting coordinator and the participants must, before family law mediation or parenting coordination begins, enter into a written agreement that includes at least the following provisions:

(a)     an agreement that the lawyer, throughout the family law mediation or parenting coordination, is not acting as legal counsel for any participant;

(b)     an agreement that the lawyer may disclose fully to each participant all information provided by the other participant that is relevant to the issues;

(c)     with respect to family law mediation, an agreement that, subject to rule 3.3-3, the family law mediation is part of an attempt to settle the differences between the participants and that all communications between participants or between any participant and the family law mediator will be “without prejudice” so that no participant will attempt:

(i)         to introduce evidence of the communications in any legal proceedings, or

(ii)        to call the family law mediator as a witness in any legal proceedings;

(c.1)   with respect to parenting coordination, an agreement that no communications between the parenting coordinator and a participant, the child of a participant or a third party are confidential, except that the parenting coordinator may withhold any such information if, in the opinion of the parenting coordinator, the disclosure of the information may be harmful to a child’s relationship with a participant, or compromise the child’s relationship with a third party;

(d)     an acknowledgment that the lawyer must report to the Director of Family and Child Services any instance arising from the family law mediation or parenting coordination in which the lawyer has reasonable grounds to believe that a child is in need of protection;

(e)     an agreement as to the lawyer’s rate of remuneration and terms of payment;

(f)      an agreement as to the circumstances in which family law mediation or parenting coordination will terminate.

[amended 01/2013, effective March 18, 2013; amended 04/2015]

Obligations of family law arbitrator

5.  A lawyer who acts as a family law arbitrator and the participants must, before the lawyer begins his or her duties as family law arbitrator, enter into a written agreement that includes at least the following provisions:

(a)     an agreement that the lawyer, throughout the family law arbitration, is not acting as legal counsel for any participant;

(b)     an acknowledgment that the lawyer must report to the Director of Family and Child Services any instance arising from the family law arbitration in which the lawyer has reasonable grounds to believe that a child is in need of protection;

(c)     an agreement as to the lawyer’s rate of remuneration and terms of payment.

[added 01/2013, effective March 18, 2013] 

Lawyer with dual role

6.  A lawyer who is empowered to act as both family law mediator and family law arbitrator in a dispute resolution process must explain the dual role to the participants in writing and must advise the participants in writing when the lawyer’s role changes from one to the other.

[added 01/2013, effective March 18, 2013]

7.  A parenting coordinator who may act as a family law mediator as well as determine issues in a dispute resolution process must explain the dual role to the participants in writing and must advise the participants in writing when the lawyer’s role changes from one to the other.  

[added 01/2013, effective March 18, 2013] 

 

Commentary – designated paralegals and family law mediation

[1]  The purpose of this commentary is to provide guidance to supervising lawyers who are considering sending a designated paralegal to represent a client at a family law mediation.

[2]  Designated paralegals are permitted to represent a client at family law mediations in circumstances the supervising lawyer deems appropriate. However, family law mediations present unique challenges and before permitting a paralegal to represent a client in such processes the supervising lawyer must:

(a) determine whether the designated paralegal possesses the necessary skill and knowledge to act in the matter (consistent with the general obligation for determining whether to delegate work to the designated paralegal);

(b) ensure that there is no prohibition at law that prevents the designated paralegal from representing the client. For example, consider the restrictions in the Notice to Mediate Regulations regarding who has the right to accompany a party to a mediation;

(c) obtain the client’s informed consent to the use of the designated paralegal.

[3]  It is prudent for the supervising lawyer to advise the mediator and the other party, through their counsel if they are represented, that the designated paralegal will be representing the client and provide the name and contact information for the supervising lawyer.

[4]  In addition to considering the process in Appendix E of the BC Code, lawyers should consider the following before permitting a designated paralegal to represent a client at a family law mediation:

  • Mediation requires as much competency of the legal representative as is required before a court or tribunal. The supervising lawyer must bear this in mind when determining when it is appropriate to have a designated paralegal represent a client;
  • Family law is a unique area of law in which many other areas of law intersect. In addition, clients are often dealing with considerable emotional stress and in some cases come from environments where family violence exists. It is an area of practice fraught with risks that both the lawyer and the designated paralegal need the skills and knowledge to identify and properly manage. Considerable skill is required to represent a client effectively at a family law mediation. A supervising lawyer should ensure the designated paralegal has received specific training in representing a client at a family law mediation. It is prudent to have the designated paralegal shadow the lawyer for several sessions and then have the lawyer shadow the designated paralegal for his or her first few sessions.

[5]  Despite more family law matters being directed to consensual dispute resolution processes rather than to court, it remains essential that those processes and the settlements that arise in them be fair. It is important, therefore, for both the supervising lawyer and the designated paralegal to understand the case law surrounding circumstances in which settlement agreements have been set aside by the court on the grounds that the settlement was unfair.

[6]  Lawyers must review any settlement agreement arising from a family law mediation where their designated paralegal represented the client, and such agreements are provisional until such time as the lawyer has signed off on it. This provides an opportunity for review and an additional safeguard for the client. The lawyer would also be prudent to advise the client about this process as a standard part of the retainer agreement

[added 12/2015]