After successful pilot programs in Prince Albert and Regina and in accordance with s.44.01 of the Queen’s Bench Act, mandatory early family dispute resolution has been extended across the entire province of Saskatchewan, effective July 1st, 2022.
In response, the courts also continue to mandate a move away from the adversarial culture of litigation in family law toward one of negotiation. One of the goals of these changes is to reduce trauma to the children by reducing the conflict between the parties (Colucci v Colucci, 2021 SCC 24 (CanLII); Anaquod v. McLean, 2022 SKQB 134 (CanLII)).
Alternative dispute resolution options include collaborative law services, family law arbitration, family mediation and parent co-ordination.
Family mediation is currently the most popular of the early dispute resolution options. The process is relatively informal, timely and cost-effective. Mediation is also a confidential process that offers a way for disputing parties to avoid litigation and to find a solution not bound by purely legislative confines.
The Mediator’s Role
As a neutral party, the mediator cannot force a settlement. Rather, self-determination is the cornerstone of mediation and mediators endeavor to facilitate honest and open communication and constructive conversations so the parties can find common ground, explore options, test those options and ultimately create a resolution that meets their specific needs.
Parties often enter mediation entrenched in a position, without having given any thought with respect to the reasons why they are rooted in that position and what interests they are determined to protect. Mediators are trained to ask interest-based questions that aid the parties in identifying the underlying interests and issues that matter most to them.
The Process
The mediation process may be completed with relative ease and efficiency for fully engaged parties. Options to access mediation have increased significantly. Since the onset of the pandemic, remote/virtual options for attending mediation are commonplace.
Once the parties agree on a mediator, clients or their lawyers initiate the process by reaching out to a certified family law mediator. Upon completion of a conflict check, the mediator will then arrange and complete individual intake meetings, which are typically thirty to sixty minutes long.
During the intake meeting, the mediator also completes a safety screening to identify any concerns. If determined appropriate for mediation, the parties will schedule and attend a joint mediation session. Joint sessions are typically scheduled between two and three hours.
The parties are not limited to a single mediation session to resolve matters. Parties may request subsequent sessions to:
- finalize agreements;
- renegotiate issues brought up during independent legal advice;
- as a follow-up on an interim agreement or support review; or
- to address new issues.
When parties reach an agreement or a partial agreement, the mediator generally provides a mediation summary. The mediator may also prepare an agreement for the parties, typically at an extra cost.
If the parties are unable to come to an agreement, the mediator may issue a Certificate of Participation which allows the parties to proceed with litigation. The same may be provided in the event that a mediated agreement unravels and litigation is the most favorable option forward.
The court provided some guidance as to what is required to obtain a Certificate of Participation.
Recently in E.B. v M.B. 2021 SKQB 277 (CanLII), Justice Richmond stated that “participation” would require the parties to attend, share information and provide settlement options and/or reasons why an option is unacceptable.
The cost of mediation is typically shared between the parties, but parties are free to agree to any payment arrangement that works for them. However, unequal shouldering of the mediation cost risks unequal bargaining power and/or that one party may be more vested in the mediation process than the other.
Exemptions to Mandatory Mediation
Evidently not all matters are appropriate for mediation. A party may apply for an exemption under the Queen’s Bench Act for matters in which interpersonal violence, child abduction, failed attempts to engage the other party in family dispute resolution or other extraordinary circumstances are a concern.
However, case law on this issue suggests that Saskatchewan courts are not easily swayed in allowing exemptions from the process entirely. (Cases of note are Anaquod v. McLean, 2022 SKQB 134 (CanLII), Lisitzia v Here (Lisitzia), 2022 SKQB 71(CanLII) and E.B. v M.B. 2021 SKQB 277).
The Lawyer’s Role
Lawyers play a vital role in assisting clients in a meaningful mediation process and have a duty to comply with s 7.7 of the Divorce Act in their discussions with clients.
As stated by Justice Haaf in Anaquod, supra, while not specifically required by the legislation, counsel may wish to familiarize themselves with available family justice service providers so that the information they provide and recommendations they make to their client have the best chance of assisting in resolution. The Government of Saskatchewan website has links to qualified service providers.
The lawyer’s role while helping clients to initiate mediation and walking clients through each step thereafter is crucial. A lawyer who provides relevant and timely disclosure to the opposing party and the chosen mediator aids in efficient scheduling and preparatory work. Since lawyers often have a keen sense of their clients’ greatest needs and triggers, they may also be of great help to determine the best timing for mediation, preferably before conflict, client frustration and irritation peaks. Finally, a lawyer who provides legal advice to their client in advance of and/or in between mediation sessions will improve the likelihood that agreements resulting from mediation discussions will be long lasting.
There has been a visible change in perspective towards alternative dispute resolution since the mandated requirement first came into effect. It appears that clients and lawyers are increasingly leaning into the requirement rather than resisting it. It is also apparent that voluntary mediation is becoming more appealing for families as parties are now mandated to move away from the adversarial culture of litigation in family law to a culture of negotiation.
Merisa Coertze works out of the Prince Albert Law Office of Pinel & Associates and works in Matrimonial and Family Law.