Alternative Dispute Resolution (ADR) has become a cornerstone of family law across Canada—but what happens when a deal reached in mediation falls apart?
In this guide, learn how the courts are addressing this issue, and what families (and their lawyers) need to know to avoid uncertainty and protect their agreements.
Across Canada, courts have increasingly required couples going through separation or divorce to try resolving their disputes through Alternative Dispute Resolution before proceeding to trial. Whether through mediation, collaborative law, or judicial dispute resolution, ADR is designed to reduce conflict, lower costs, and keep cases out of overburdened courtrooms.
In Alberta, the Mandatory Dispute Resolution (MDR) rule under Rule 4.16 of the Alberta Rules of Court requires parties in most family law matters to attempt ADR before scheduling a trial. Similar requirements exist in Ontario, British Columbia, and several other provinces.
The goal is clear: help families resolve their issues more peacefully, and reduce the negative emotional and financial impact of high-conflict litigation—especially where children are involved.
What happens when two parties think they’ve reached an agreement during ADR, only for one to later say they didn’t? This “deal or no deal” dilemma is a growing issue in family law, particularly when informal agreements—verbal deals, flip chart notes, or vague emails—lead to misunderstandings.
In Alberta, courts have seen a rise in litigation surrounding the enforceability of ADR agreements. Disputes over whether a binding deal was reached can land families back in court, defeating the very purpose of ADR.
Unfortunately, there’s no clear national standard when it comes to the binding nature of ADR outcomes. While courts generally support the idea that agreements reached in mediation or settlement meetings should be upheld, inconsistent documentation and a lack of clarity often leave room for interpretation.
In some provinces, a signed mediation summary or written agreement is enough to enforce the deal. In others, parties challenge the agreement’s validity based on lack of legal advice, mental state during mediation, or misunderstanding of terms.
To ensure agreements stick—and to protect all parties involved—courts and legal professionals are emphasizing the importance of proper documentation and legal clarity. Here are a few best practices:
As emphasized in recent legal discussions, the safest way to ensure an agreement holds up is to document everything.
Lawyers themselves are increasingly at risk of professional liability claims when clients regret deals made during ADR. Buyers’ remorse, vague agreements, or lack of legal clarity can all contribute to dissatisfaction.
To avoid this, lawyers across Canada are encouraged to:
As Alberta’s courts have stressed: If you want the deal to stick, write it down, get signatures, and make sure everyone understands the terms.
Mandatory ADR has become an integral part of family law across Canada, helping many families resolve their disputes efficiently and with less conflict.
However, the success of this process depends on clarity, proper legal guidance, and thorough documentation. Whether you're entering mediation or finalizing an agreement, it’s essential to ensure that any resolution is clearly outlined, well-understood by all parties, and properly recorded to avoid future disputes.
Toal v Podlubny, 2025 ABKB 71 and Toal v Podlubny, 2025 ABKB 174
The dispute arose in a Family Special Chambers Application—a half-day hearing—to enforce a mediated settlement agreement between the parties. Defendant denied any such agreement was reached; Plaintiff claimed otherwise. Justice Silver ultimately found that the parties had entered into a clear and unequivocal mediated agreement, which the Defendant then refused to honor.
In the subsequent costs decision, the Court held the Plaintiff entitled to a costs award. Given the Defendant’s conduct, Justice Silver applied a 1.5 multiplier to the standard scale costs. Result: the total costs awarded were $6,230.50. The hope is that this enhanced costs order will deter future case law on ‘deal or no deal’ when the deal is clearly binding.
Heine v Worsfold, 2025 ABKB 307
This case involved a mediation–arbitration hybrid in a family-law dispute, where the parties reached a mediated settlement, which was then converted into a consent arbitral award by the same individual who had mediated the agreement. The Applicant (Heine) objected on the basis that the mediator–arbitrator had demonstrated bias during the mediation phase—arguing that this bias tainted the subsequent consent award. Despite the bias allegations, the Court enforced the consent arbitral award. The judgment emphasized that consent agreements arising from mediation–arbitration processes can be upheld—even where fairness concerns are alleged—provided the arbitration process meets the necessary standards and due process protections. This case underscores the enforceability of consent arbitration awards in family disputes—even in hybrid mediation–arbitration settings—so long as procedural safeguards are met, and mere allegations of bias may not suffice to invalidate them. The decision on costs is not yet pronounced.
If you have questions or need guidance, contact us today. We’re here to help you every step of the way.