Mediation
What Happens If Family Mediation Does Not Work? Your Options Under BC Family Law
Mandy Shergill16 August 20269 min read
The most common reason people hesitate before booking mediation is not the cost. It is the fear of wasting the cost. If we sit in a room for three sessions, spend several thousand dollars, and my former partner still will not budge, have I just thrown that money away and delayed everything?
It is a reasonable worry, and it deserves a straight answer.
If mediation does not produce a full agreement, nothing you did is lost. Any issues you did resolve can be put into a binding agreement and taken off the table permanently. What you disclosed remains disclosed. And you can move to arbitration or court on the narrower set of issues that are actually still in dispute, which is almost always faster and cheaper than starting there. Mediation that ends without a complete agreement is rarely a failure. It is usually a reduction of the problem.
How often does family mediation actually succeed in BC?
Most family mediations in British Columbia end in a full or partial agreement. Mediators and the Province's family justice services consistently report settlement rates in the range of 70 to 80 percent, and the majority of files that do not settle completely still resolve some issues.
Those numbers are worth holding onto, because the failure scenario people imagine is the exception rather than the rule. The reason the success rate is so high is straightforward. Mediation is voluntary. If both people show up prepared to negotiate, most disputes have a zone of agreement somewhere, and a skilled mediator's job is to find it.
BC's own data on the Early Resolution Process, which runs in Surrey, showed that a large share of families reached agreement without ever needing a judge.
Is family mediation mandatory in BC?
No. Mediation itself is not mandatory in British Columbia. But for most Provincial Court family matters in Surrey, you must attempt a form of consensual dispute resolution before you can file a court application.
Two separate things are worth pulling apart here.
First, the Family Law Act places a duty on family dispute resolution professionals, including lawyers, to advise you about the out of court options available to you and to screen for family violence. Your lawyer has to raise mediation with you. You do not have to choose it.
Second, and more concretely, Surrey Provincial Court is an Early Resolution Registry. For most Provincial Court family law matters, including child support, spousal support, parenting arrangements, contact with a child and guardianship, the rules require you to complete a needs assessment with a Family Justice Counsellor, finish a parenting education program, and attend at least one consensual dispute resolution session where that is appropriate, before you can file an Application About a Family Law Matter.
There are exceptions. Protection order applications, child protection matters, enforcement and other urgent or time sensitive matters are treated differently, and a needs assessment can determine that consensual dispute resolution is not suitable, including where there is family violence.
BC Supreme Court has its own requirements. Notably, before most applications can be heard, the parties must attend a Judicial Case Conference, which is itself a settlement focused meeting with a judge.
The practical upshot for a Surrey family is that you will almost certainly be sitting down to attempt resolution at some point. The only real question is whether you do it early, when it is cheap and positions are soft, or late, after both of you have spent money hardening them.
What is a partial agreement, and is it binding?
A partial agreement is where you settle some issues in mediation and leave others unresolved. It can absolutely be made binding, and doing so is usually a good idea.
Say you and your former partner agree on parenting time, the school your children will attend, child support based on guideline income, and the sale of the family home, but you cannot agree on spousal support or on how a business interest should be valued.
That is a good outcome. You can sign a separation agreement covering everything settled, and it becomes a binding contract. Those issues are finished. You then take one or two remaining issues to arbitration or to court.
The benefit is enormous and often underappreciated. A court application over one discrete issue is a fundamentally different animal from a full family law trial. It is shorter, it costs a fraction as much, and it is far easier to prepare for. People arrive at mediation with twelve issues and leave with two. Litigating two issues might cost $8,000. Litigating twelve might cost $60,000.
For a partial agreement to hold, both of you should have provided full financial disclosure and each of you should get independent legal advice before signing. Agreements without disclosure are the ones that get set aside later.
What are your options if mediation ends without agreement?
You have four realistic paths, and they are not mutually exclusive.
1. Return to mediation later. Mediation often stalls for reasons that are temporary. A missing pension valuation, a house appraisal nobody has ordered, or a spouse who simply has not emotionally caught up yet. Adjourning and coming back in six weeks with the missing information resolves a surprising number of files. This costs very little and is worth trying before escalating.
2. Lawyer to lawyer negotiation. If direct conversation is not working, four way negotiation between the two of you and your lawyers, or written offers exchanged between counsel, resolves a great many disputes. This is where a formal offer to settle carries real weight, because in BC Supreme Court refusing a reasonable offer can affect who pays costs at the end.
3. Family law arbitration. This is the option most people have never heard of, and it deserves more attention. In arbitration, you and your former partner appoint a neutral arbitrator who hears the dispute and makes a decision that is binding, much like a judge's order. It is private, you choose the arbitrator, you choose the schedule rather than waiting for court availability, and it is generally faster and cheaper than litigation. You can also combine it, in an arrangement sometimes called mediation-arbitration, where you attempt mediation and the same neutral decides anything you cannot agree on. That guarantees you finish.
4. Court. Sometimes court is genuinely the right answer, and nobody should feel that going to court is a failure. It is necessary when a spouse refuses to disclose finances or is hiding assets, when there is family violence or a child is at risk, when one person will not participate at all, or when there is a real legal question that needs a judge to decide. Court also offers something the other paths do not: enforceable interim orders and the power to compel.
Our page on settlements covers how we approach the negotiation stage.
Do I need a lawyer for mediation?
You are not required to have one, but you should get independent legal advice before you sign anything that comes out of mediation.
There is an important distinction here. A mediator is neutral. Even a mediator who is also a lawyer, as Mandy Shergill is, cannot give either of you legal advice while acting as mediator. Their role is to help you reach agreement, not to tell you whether that agreement is good for you.
That is exactly why independent legal advice matters. A lawyer acting only for you can tell you whether what is on the table is roughly in the range a court would order, whether you are giving up a claim worth more than you realise, and what the tax consequences look like. Independent advice also makes the resulting agreement much harder for either side to challenge later, which protects both of you.
Practically, most people use a lawyer in one of three ways. Advice before mediation, so you walk in knowing your entitlements. Advice between sessions, on specific proposals. Or a review at the end, before signing. Any of those is far cheaper than having a lawyer conduct a litigation file.
Does anything said in mediation come back to haunt you?
No. Mediation in British Columbia is confidential and generally conducted on a without prejudice basis, which means offers and discussions from mediation cannot be used as evidence against you in court later.
There are narrow limits. Disclosure obligations still apply, so financial documents you exchanged remain disclosed and cannot be un-disclosed. Mediators have reporting duties where there is a risk to a child. And a signed agreement is a signed agreement.
But the compromise you floated in session two to test whether it might work does not become an admission. That protection is what makes honest negotiation possible in the first place.
Talk to a Surrey family lawyer and mediator
Mediation that does not settle everything is not money wasted. It narrows the dispute, locks in what you have agreed, and leaves you facing a much smaller and much cheaper problem.
Shergill Law Corporation is a family law firm in Surrey, BC. Mandy Shergill is a lawyer and a mediator, so we can assess whether family mediation is right for your situation, run the mediation where it is, and represent you in negotiation or court where it is not. We serve families across Surrey, Delta, Langley, White Rock and the Fraser Valley.
Call (604) 773-4392 or email info@shergilllaw.ca to book a consultation.
Frequently asked questions
What happens if family mediation fails in BC?
Nothing you achieved is lost. Any issues you did resolve can be recorded in a binding separation agreement, and your financial disclosure stands. You can then return to mediation later, negotiate through lawyers, go to family law arbitration, or apply to court on the narrower set of issues still in dispute, which is significantly cheaper than litigating everything.
Is family mediation mandatory in British Columbia?
Mediation itself is not mandatory. However, for most Provincial Court family matters in Surrey you must complete a needs assessment, a parenting education program, and at least one consensual dispute resolution session before filing an application, because Surrey Provincial Court is an Early Resolution Registry. Protection order and other urgent matters are handled differently.
Can you settle only some issues in mediation?
Yes. A partial agreement is common and can be made binding through a signed separation agreement. Settling parenting and child support while leaving spousal support for a judge or arbitrator often reduces legal costs dramatically, because litigating one or two issues costs far less than litigating all of them.
Do I need my own lawyer if we are using a mediator?
You are not required to, but you should get independent legal advice before signing. A mediator is neutral and cannot advise either party, even if the mediator is also a lawyer. Independent advice tells you whether the deal is reasonable and makes the agreement much harder to challenge later.
What is the difference between mediation and arbitration in BC?
In mediation, a neutral helps you reach your own agreement and cannot impose an outcome. In arbitration, a neutral arbitrator hears the dispute and makes a binding decision, similar to a judge but private, faster and scheduled at your convenience. Some families use mediation-arbitration, where the same neutral decides anything mediation does not resolve.
Can what I said in mediation be used against me in court?
Generally no. Mediation in BC is confidential and conducted on a without prejudice basis, so offers and discussions cannot be used as evidence later. Financial disclosure you provided still stands, and mediators have reporting duties where a child may be at risk.
How long does family mediation take?
Most family mediations in BC resolve in two to four sessions across a few weeks or months, totalling roughly four to twelve hours of mediation time. Litigation on the same issues commonly takes one to three years. This article provides general information about family law in British Columbia and is not legal advice. Speak with a lawyer about your own circumstances.
This article is general information about family law in British Columbia. It is not legal advice for your situation. Speak with a lawyer about the facts of your own matter.