People are often more satisfied with outcomes they agree on than with decisions imposed by a third party, even when the third party is a judge. Where people involved in a family or civil law dispute have equal power, BC laws encourage them to try to reach an agreement rather than proceed to trial. This not only maintains people’s control over decision making but avoids the escalation of hostility that often accompanies court proceedings.
Opportunities for resolving disputes outside court (sometimes called “alternate dispute resolution” (ADR) or “consensual dispute resolution” (CDR)) are built into the Provincial Court’s Family and Small Claims rules.
Mediation is a process where people meet with a neutral, impartial person who helps them discuss and resolve a dispute. Various types of mediators help people resolve family disputes in BC.
Family Justice Counsellors
Family Justice Counsellors provide free family mediation services through Family Justice Centres and Justice Access Centres and by telephone throughout BC. They help separated people of modest means agree on issues of guardianship, parenting arrangements, contact, and child and spousal support. When people agree, a Family Justice Counsellor can help record their agreement as a written agreement or consent court order, including consent to change an existing court order.
In some areas people are required to meet with a Family Justice Counsellor before filing an application or obtaining a date to appear in court. The Family Justice Counsellor will assess the family’s needs and suggest community resources that might help them. In other areas they are encouraged to do this to try to avoid having to go to court. When people agree, a Family Justice Counsellor may submit a consent court order to be signed by a judge without their having to attend court.
A judge may also order a Family Justice Counsellor to prepare a report on issues related to guardianship and parenting arrangements, or to interview children to find out their views. See s. 211 of the B.C. Family Law Act.
Mediate BC maintains a roster of qualified family mediators who charge for their services. Private mediators can mediate issues outside the Family Justice Counsellors’ mandate, and they may conduct longer mediations. They have experience mediating different types of disputes and offer various styles of mediation.
In Victoria, Vancouver and Nanaimo, lawyer-mediators are offering free online mediation to low and modest income families using videoconference technology in a pilot project. In Richmond and at Vancouver’s Robson Square courthouse volunteer lawyers also offer free mediation to eligible families.
In collaborative separation or divorce, a couple works with lawyers and financial and/or mental health professionals as needed to resolve both the legal and emotional consequences of separation out of court. Each spouse has a lawyer trained in mediation and collaborative practice to support them and advocate for them throughout negotiations.
The B.C. Collaborative Roster Society maintains a roster of some qualified legal, financial and mental health collaborative professionals. Those on the roster are subject to the Society’s educational and ethical requirements and complaint process.
Parenting coordinators are experienced family law lawyers, counsellors, social workers and psychologists with special training in mediating and arbitrating parenting disputes, and in helping separated parents focus on their children’s needs. Members of the BC Parenting Coordinator Roster Society must meet criteria for professional qualifications, training, and liability insurance.
Judicial Dispute Resolution
Judges mediate issues between litigants in various types of conferences. The first appearance in many Family Law Act matters is a Family Management Conference with a judge. A judge may direct a Family Settlement Conference when they think the parties may be able to reach a final order by consent. At certain stages of child protection matters, case conferences with a judge are required. The judge tries to help the litigants work out solutions to the issues that bring them to court.
Traditionally, in a judicial conference people sat around a table with a judge (and possibly lawyers, social workers, and support people, depending on circumstances). However, since May 2020, conferences in family and small claims matters have been conducted by telephone, audio- or video-conference. See Virtual conferences and hearings (by phone or video) for more information.
Child Protection Mediation
Mediation is also available from a trained, impartial mediator in child protection matters. Parents, social workers, lawyers, support people and family members meet to talk about the best plan for a child’s safety. See Child Protection Mediation and find videos on the Ministry of justice website.
Small Claims cases
Small Claims BC offers live phone help, online chat and legal information by email, and a free, secure, online negotiation service that can be used before a claim is filed in court. If you try it and it doesn’t work, you can still go to the Civil Resolution Tribunal or to court, depending on the dollar value of the dispute.
The Civil Resolution Tribunal’s Solution Explorer also provides free legal information and tools to resolve Small Claims disputes of any value. If you don’t resolve your dispute there, you can pursue a claim in the Civil Resolution Tribunal or court, depending on the type and dollar value of the dispute.
People’s first court appearance in Small Claims Court will generally be for a judicial settlement conference where they (and their lawyers if they have them) meet with a judge to try to resolve their issues without a trial. For claims over $10,000 you may also use a Notice to Mediate to initiate mediation using a private mediator. See Small Claims Rules section 7.3 for information on that procedure.
Criminal and youth cases
In criminal and youth matters, after charges have been laid the Crown prosecutor sometimes agrees to proceed by “alternative measures” under s. 717 of the Criminal Code. An accused person must accept responsibility and be approved to participate in this program. If they fulfill all the terms of an alternative measures agreement, which often includes performance of community work service, the prosecutor will “stay” (not proceed with) the charges in court. Alternative measures involve an agreement between an accused person and the Crown. A judge is not involved.
The Court conducts virtual pre-trial conferences for adult and youth criminal files requiring one or more days of court time. Judges discuss these trials with lawyers to ensure that only those requiring a trial are actually set for hearing and that time estimates are accurate before trial dates are set. The goal is to reduce inefficiencies in the criminal justice system by providing a mechanism for participants to collaborate and conduct cases more efficiently. Using pre-trial conferences to help reduce day-of-trial collapse rates and trial continuations is an important part of the Court’s commitment to ensuring the fair, efficient and timely resolution of criminal files and upholding the accused’s right to be tried within a reasonable time. See Practice Direction CRIM 19.
Updated May 17, 2021