Quebec tabled a draft regulation on July 5 that will increase the rates of accredited family mediators who participate in the popular provincial program, Family Mediation Service, from $110 an hour to $130, a hike that will do little to entice family mediators to remain in the profession, let alone in the program, said Claudine Cusson, the president of the Quebec Association of Family Mediators (AMFQ). The organization, which represents some 300 professionals who have received specialized training in family mediation, has 45 days following the publication of the draft regulation to submit a brief with new proposals.
“For lawyers, the fees are totally uncompetitive,” remarked Cusson, a Montreal lawyer and accredited mediator in civil, commercial, family and small claims mediation. “I’m very worried. Even if they really do intend to reach an agreement, I’m afraid that what’s on the table won’t make any difference. I’m honestly worried, but we’ll see.”
Claudine Cusson, Quebec Association of Family Mediators
Launched in 2012, the Family Mediation Service offers several hours of free mediation to couples in the midst of a separation, depending on the family situation. Couples who are breaking up can obtain five hours of free mediation to get a judgment for child support or divorce if they have dependent children, three hours if they do not have dependent children, or 2.5 hours if the couple has already had five free hours and wants to settle a new issue arising from the separation. Additional time required for the case is at the couple’s expense at the prescribed hourly rate of $110.
The initiative has proven to be popular, with nearly 17,000 couples in 2021-2022 resorting to it, according to figures from the Quebec Ministry of Justice. A 2017 survey conducted on behalf of the Ministry of Justice revealed that 84 per cent of parents reached an agreement with their former spouse during the family mediation process, and 81 per cent were satisfied with the program because the process was easy (97 per cent) and because the mediation took the interests of the child at heart (90 per cent). The overwhelming majority, or 90 per cent of respondents, said they would use the services again if needed.
“Family mediation makes a real difference to the lives of separating couples,” said Gosselin. “It encourages discussion and gives ex-spouses more control over how their case progresses. In this way, participants contribute to the search for solutions to their conflict.”
Mediation has become a cornerstone of the Quebec government’s efforts to disgorge the courts, a strategy that has accelerated over the past couple of years with the government introducing a pilot project centred on mediation in youth protection in 2021, and more recently still with the passage of Bill 8. Under Bill 8, assented on March 15, free mediation will be mandatory for cases under $5,000, a move aimed at curbing delays in small claims courts. It now takes an average of 22 months in Quebec to get a small claims hearing, and in some jurisdictions the figure reaches nearly three years, compared to 223 days in 2018. Under the new law, if mediation proves fruitless, the matter automatically is referred to arbitration, at no additional cost.
Catherine Claveau, Barreau du Quebec
As of March 31, 2022, 1,114 lawyers out of a total of 29,424 members were accredited in civil, commercial and labour mediation, including 67 new accreditations, according to the 2021-2022 Quebec bar’s annual report. Further, there are only 556 bar members accredited in family mediation and 631 in small claims mediation. The figures are just as inauspicious for notaries. Out of 3,881 Quebec notaries, 583 are certified mediators, 293 of which are accredited in small claims mediation and 170 in family mediation, according to the 2021-2022 annual report of the Chambre des notaires.
The key reason behind the disinterest of lawyers and notaries is the paltry remuneration offered by the Quebec government, legal observers say. Mediators who work in small claims are paid slightly more than family mediators, an hourly rate of $114, a figure that barely covers fixed costs, they added. “The rates provided by the governments is too little,” Kevin Houle, president of the Professional Association of Quebec Notaries (APNQ), told Law360 Canada earlier this year. “It doesn’t even cover the cost of ‘coffee’. It’s a social cause. There are many notaries who say I’m not interested in the mediation the government pays for, because it does not pay. They have other cases and the demand is there. So that’s a factor that doesn’t help.”
The numbers of professionals who practise family mediation will keep on dwindling until the government increases its hourly rates, asserts Cusson. An overwhelming majority of AMFQ members participating in the public program hope to earn between $150 and $200 an hour, according to a 2019 internal survey. “We informed the government that this is what people expected in 2019, and as time goes by, these expectations increase,” said Cusson. “Now it has to be financially viable for both the mediators and the Ministry of Justice, and that’s the crux of the matter.”
But in the meantime, growing numbers of family mediators are opting out of the public program “out of economic necessity,” and more alarmingly, many mediators are leaving the practice of mediation altogether. The AMFQ is recommending an “immediate and concerted withdrawal from the public system” in favour of the private sector, a move that Cusson herself has made when she founded Centre de médiation St-Hubert. But that is not an easy move to make because there is a “lot publicity around the fact” that mediation is free, admits Cusson. “It’s a shift that I’m in the process of making, but it’s not just me,” said Cusson. “It’s not that simple, but it works. On the other hand, we certainly have a lot of explaining to do for the public.”
Though Cusson does not have quantitative data, qualitative data suggests that mediators who have relinquished the public sphere towards an exclusive practice charge an average of $250 an hour. Some mediators charge that same fee to all clients, while others have opted to adapt their rates according to family income, added Cusson.
“The government recognizes that there is a problem, but its financial proposal to solve the problem is not sufficient to achieve the objective it wants to achieve,” said Cusson. “So if the objective is still to reduce the number of cases going to court, unfortunately I’m afraid the proposal that’s on the table won’t work. It won’t make any difference.”