Notice to Mediate (General) Regulation

The Notice to Mediate process

The Notice to Mediate process allows any party to a range of actions in B.C. Supreme Court to require all other parties to the actions to mediate the matters in a dispute.

The Notice to Mediate (General) Regulation does not apply to:

• Originating applications
• Family law proceedings
• Actions brought under the Judicial Review Procedure Act
• Claims for compensation for physical or sexual abuse
• Actions to which the other Notice to Mediate regulations apply

Please note: If all parties to an action voluntarily agree to mediation, and also agree on a mediator, the Notice to Mediate process is unnecessary.

When the Notice to Mediate can be used

The notice can be used at any time between 60 days after the filing of the first statement of defence and 120 days before the date of trial, unless the court orders that it can be used before or after this timeframe.

How the Notice to Mediate process works

The party who wishes to mediate delivers a Notice to Mediate to all other parties to the action. (“Party” is defined as including an insurer of a party to the action.) The parties must jointly agree upon a mediator within 14 days after the notice has been delivered to all other parties, if there are four or fewer parties to the action or within 21 days after the notice has been delivered, if there are five or more parties to the action.

The mediation must occur within 60 days after the mediator's appointment, but not later than seven days before the date of trial, unless all parties agree to a later date or one is ordered by the court.

Exemptions to the process

Exemptions to the Notice to Mediate process are allowed in certain circumstances. These may include when all parties have already participated in a mediation session in the same dispute or if a judge orders that one or more parties are exempt from attending the mediation.

Mediation before damages are known

If the extent of the damage is not yet known, it is not likely mediation will result in a settlement. There is no point, then, in one party compelling the other parties to mediate. This is critical when deciding whether and when to use the Notice to Mediate.

Also, a party may ask the court to adjourn the mediation. The court has the power to order an adjournment to a later date on the terms and conditions it considers appropriate.

Pre-mediation conferences

A pre-mediation conference is a meeting at which such matters as pre-mediation disclosure of documents, obtaining and exchanging expert reports, and scheduling are considered.

Mediators are required to hold a pre-mediation conference if the action is complex. Parties are required to attend the conference.

The same exemptions apply to the requirement to attend a pre-mediation conference as apply to the requirement to attend mediation.

Agreeing on a mediator

If parties are unable to agree on a mediator within 14 or 21 days (whichever is applicable), any party may apply to a roster organization designated by the justice to appoint the mediator. The Alternative Dispute Resolution Institute of British Columbia (ADRBC) is the roster organization for this purpose. ADRBC maintains a list of trained and experienced mediators who have agreed to a code of conduct.

Appointing a mediator through a roster organization

The process that a roster organization must follow to select a mediator is set out in sections 8 to 11 of the Notice to Mediate (General) Regulation.

Refusing to participate in mediation

If a party fails to carry out a provision of the Notice to Mediate (General) Regulation, any of the other parties may file an Allegation of Default with the court.

If this occurs, the court has a range of powers, including:

• Ordering that a scheduled pre-mediation conference or a mediation session occur on any terms the court considers appropriate
• Ordering a party to attend one or both of a scheduled pre-mediation conference and a mediation session
• Staying the action until a party attends one or both of a scheduled pre-mediation conference and a mediation session
• Making orders about costs

The advantage of the Notice to Mediate process

The Notice to Mediate requires the parties to attend a mediation session. It does not require them to settle the dispute. The experience in many other jurisdictions, and the experience with B.C.'s Notice to Mediate for motor vehicle actions, is that mediation works even when a party is forced to mediate.

From 2002 to 2010, about 30,000 motor vehicle actions were mediated. About 24,000 resolved for an average settlement rate of about 80 per cent.

Cost

Mediators’ rates vary. The cost is generally shared equally between all parties, unless they agree to some other arrangement. Parties will also have to pay for their lawyers if they represent parties at the mediation.