Umm Excuse Me? We now have to do what exactly? Mandatory Early Family Dispute Resolution Processes in Saskatchewan Family Law Matters

  • December 12, 2022
  • Charmaine Panko, K.C.

As of July 1, 2022, parties to a family law action in Saskatchewan must participate in a family dispute resolution process before proceeding with a court application.  Though the amendments to The Court of King’s Bench Act, 1998, [the “Act”] were made in the spring of 2018, they were initially only implemented in the judicial centre of Prince Albert, and then expanded to Regina. Family law practitioners throughout Saskatchewan are now faced with the challenge of how to effectively advise their clients and support them in making the most of this opportunity.

Despite often being referred to as “mandatory mediation”, family dispute resolution includes many different resolution options. The obvious first step for family lawyers to be able to competently advise their clients is to understand these different options:

  • Mediation is arguably the most known and believed to be (though isn’t always) the simplest, most cost effective, and time efficient.  The mediator meets with each party to screen for family violence and to better understand the situation from each party’s unique perspective.  During the joint meeting the mediator serves as an impartial third party to facilitate and guide the discussions from an interest-based perspective.  The mediator can assist the parties in identifying the issues to be resolved, what information is needed to make informed decisions, and determining their next steps.
  • A family arbitrator on the other hand, is not a neutral third party. Instead, they are given the authority to make binding decisions to resolve the family law issues.  An arbitrator may consider written submissions and/or oral testimony.  Typically, an arbitration process is relatively informal and can be completed in a shorter timeframe than the conventional court system.
  • A parent co-ordinator has a more focused role in helping parties learn to communicate effectively with each other and to reach an agreement on parenting issues using a child-focused lens.  If parents cannot reach an agreement, a parent co-ordinator has the authority to decide certain issues for them.  This is a limited authority, and a parent co-ordinator cannot make an order related to matters of decision-making or parenting time.
  • The collaborative law process involves lawyers and other professionals  (such as financial neutrals, child specialists, separation and divorce coaches) who are collaboratively trained to provide a non-adversarial, client-centred approach to assist parties in identifying their key issues and to communicate constructively toward an out-of-court resolution.  A key feature to the collaborative law process is that all professionals involved execute a participation agreement that disqualifies them from continuing to work for either party if the matter proceeds to court.     

Understanding the processes available is only the beginning. A family lawyer must then determine and advise which process is best suited to their client’s situation, or if their client should apply for an exemption to the requirement to participate in a family dispute resolution process.  Failing to fully consider what is best in the client’s circumstances can result in time delays, frustration, and unnecessary expense.  A family lawyer may have some knowledge and experience with one or more of the family dispute resolution processes; however, unless they received training and are recognized service providers themselves, they may be unclear as to how best to provide that advice. 

To assist in navigating these new provisions, family lawyers should consider the following best practices:

  1. Participate in Continuing Professional Development to learn more about each of the family dispute resolution processes, such as those provided for by the CBA, the Law Society, the ADR Institute of Saskatchewan, and the Collaborative Professionals of Saskatchewan.
  2. Develop Relationships with Recognized Service Providers to learn more about the services they provide.  Going for lunch together is a great opportunity to get to know each other, and ask questions about their philosophy of practice, how much they charge, and their process model.  It is also an opportunity for you to share the priorities, expectations, and concerns, from your perspective as legal counsel in ensuring that your clients’ best interests are protected if you were to refer them to the service provider.
  3. Ask your Clients about their Goals to better understand their substantive, procedural, and psychological interests.  Families will typically have needs that are not legal in nature and may benefit from additional supports such as those provided by financial neutrals, mental health professionals, and child specialists.  These supports can often be incorporated into a family dispute resolution process.
  4. Bridge the Gap for your Clients by Staying Involved.  You can assist your client from the very beginning by introducing them to the service provider you are recommending they work with.  You can assist them throughout their process by spending time with them to help them prepare, debriefing with them afterwards, and even participating alongside them in their process.
  5. Keep an Open Mind and Be Curious.  Lawyers want what is best for their clients.  That doesn’t mean we always know what is best for our clients.  Clients will often prioritize needs differently than we might expect them to, so when you are providing independent legal advice and helping your client reach resolution through a family dispute resolution process, seek to understand your client’s underlying closely held values and beliefs, their needs, and the fears that they are needing to have addressed, both in the short term and for the long term.

Having worked as a collaboratively trained lawyer and mediator for many years, I have witnessed how empowering families to create their own outcomes can transform their experience of the family law system.  Though change is never easy, this is a change we can celebrate and support each other as practitioners in learning in a new way.  A new way that will be a better way for the families we serve.  

Charmaine Panko, K.C. (she/her) is the founder of Panko Collaborative Law & Mediation, she works in the field of conflict resolution as a collaborative lawyer, mediator and trainer.