Notice to Mediate (Motor Vehicle) Regulation

Notice to Mediate process

The Notice to Mediate process allows any party to a motor vehicle action in B.C. Supreme Court to require the other parties to attend a mediation session.

Please note: If all parties to an action voluntarily agree to mediation, and also agree on a mediator, the Notice to Mediate is not necessary.

When the Notice to Mediate can be used

The notice can be used at any time between 60 days after the end of the pleading period (after the notice of civil claim and all responding pleadings have been filed) and 77 days before the date of trial.

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. Within 10 days after the Notice to Mediate has been delivered to all parties, the parties must jointly agree on the appointment of a mediator. The mediation must occur within 60 days of the mediator's appointment, unless all parties agree in writing to a later date.

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 the extent of personal injuries, damage or repair Costs are Known

If the extent of injuries are not known or injuries have not stabilized or the damage or the cost of repairs 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.

Agreeing on a mediator

If parties are unable to agree on a mediator within 10 days, 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 a roster organization for this purpose. The society 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 section 7 of the Notice to Mediate (Motor Vehicle) Regulation.

Refusing to participate in mediation

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

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

• Putting the action on hold until the defaulting party attends mediation or
• Making orders about costs

The advantage of the Notice to Mediate process

The Notice to Mediate process promotes earlier settlement. 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 2012, about 37,000 motor vehicle actions were mediated. An average of 78% resolved each year.

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.