The range of hourly billing allowed by Legal Aid BC (“LABC”) for lawyers preparing for or attending mediation is now $113.39 to $124.73, depending on years of call. The hourly billing rate for mediators under the Disbursement Tariff is $83.90 per hour, no matter how much training or how many years of experience the mediator has. LABC also expects parties to share the cost of mediation equally. This means that if both clients are on a legal aid contract the mediator will receive $41.95 per hour from each client.
On March 1, 2021, the new federal Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.) came into force. Section 7.3 of the new Act is labelled “Family dispute resolution process” and requires parties of a family law proceeding to try to resolve matters that may be subject to an order under the Act through a family dispute resolution process, to the extent that it is appropriate to do so.
On March 18, 2013, almost eight years earlier, the provincial Family Law Act, SBC 2011, c. 25 came into force. Part 2, Division 1 of this Act is subtitled “Resolution Out of Court Preferred.” Section 4 ensures that parties to a family law proceeding are aware of their options for resolution and encourages parties to resolve their family law matters through agreements and appropriate family dispute resolution before making an application to court.
Currently, when filing a Notice of Family Claim in Supreme Court or an Application About a Family Law Matter in Provincial Court, lawyers for a family law client are obligated to sign a Lawyer’s Certificate or Statement pursuant to section 8 of the Family Law Act confirming that they have discussed with and advised their clients of various types of dispute resolution.
LABC provides lawyer hours for preparing for and attending mediation under a standard family law contract. It also provides for the cost of a mediator for a set number of hours to be billed by the lawyer as a disbursement.
As of May 2021, the LABC Disbursement Tariff states that mediation must be carried out by a qualified mediator. For a lawyer to become a qualified family law mediator they must have experience in family law, 80 hours of approved mediation skills training, and 14 hours of approved training in family violence. More than 160 hours of training and a minimum of two years of experience in a family law-related practice, as well as 40 hours of mediation work are required for non-lawyers to be admitted to the family mediation roster of Mediate BC. These hours do not include the annual continuing professional development requirements to maintain mediator qualifications. Just about any family lawyer will attest to the high value a skilled mediator brings to a family law file.
In the Access to Justice themed August 2018 issue of BarTalk, Attorney General David Eby stated that the government wanted to not only promote but also transform access to justice, in part, by identifying and addressing needs at the front end and encouraging the use of consensual resolution processes. Legislation at both levels of government now impose a duty on parties to a family law matter and their lawyers to resolve matters outside of court.
In August of 2019, the Association of Legal Aid Lawyers negotiated an agreement with the provincial government and LABC to gradually increase hourly rates for lawyers in an effort to retain lawyers willing to accept legal aid contracts. Mediator rates were not included in this increase. If we want the highly trained and skilled professionals to provide the out-of-court dispute resolution processes that the law requires families to use to resolve their family law issues, then it is time for government funding of LABC to expand to adequately compensate them.