Self Help
Steps in Resolving Disputes and Claims
This page provides a series of questions and answers about the administrative justice system and how tribunals, which are part of that system, conduct their work. Click on the hyperlinked questions below to view answers.
How can I find out information about the specific steps a particular tribunal uses to resolve disputes?
Most tribunals set out the various steps that must be followed, which are often called the tribunal’s rules. Tribunals’ rules are usually available on the tribunal’s website or by contacting the tribunal office. Links to various B.C. tribunal websites and information about how to contact a particular B.C. tribunal is available on the Administrative Tribunals in British Columbia web pabe.
What is the usual first step to get a dispute or claim resolved by a tribunal?
The first step is to provide the tribunal with some basic information about yourself and the person or agency you have the dispute with or claim the benefit from (names, addresses, and telephone numbers) and a short description of the dispute or claim. Some tribunals have forms for this information that you may be required to use. Some tribunals may also require other documents be provided and there may also be a filing fee to pay. You need to check with the tribunal for its exact requirements.
The tribunal office will open a file and assign the file a case or file number. Often the file will then be assigned to a senior staff person or tribunal member for a preliminary review and subsequent case management processes.
What is a preliminary review?
Tribunals only have authority to resolve specific types of disputes or claims.Documents filed with the tribunal to start the process are reviewed, to ensure the dispute or claim is within the tribunal’s authority. This is usually done by a senior staff person. If the tribunal doesn’t have authority to resolve the dispute or claim, then parties can be advised early in the process so they can take their dispute or claim to the appropriate tribunal. Most tribunals will try to re-direct parties to the appropriate tribunal. In some cases, the court may be the only option to resolve the dispute or claim.
The person reviewing documents will often also look to see if the documents set out all the necessary information and may require further information for the tribunal to proceed to resolve the dispute or determine the claim. Requests for more information may be made by telephone calls or letters from the tribunal. It is very important to respond to requests for information made by the tribunal.
A preliminary review may also determine if any pre-conditions for filing have been met. Examples of pre-conditions that may have to be met include time limits to start the process and/or filing fees that may have to be paid. This may also involve telephone calls or letters from the tribunal. If the tribunal requires additional documents to be filed or a fee to be paid, and the party who is requested to do that does not do so, the tribunal may refuse to proceed with the claim. So it is very important to respond to any letters or calls from the tribunal in a timely way.
If the dispute or claim has been filed after a time limit has expired, the tribunal may refuse to take any further steps and advise the people involved. Whether that decision can be appealed or reviewed by the courts, another tribunal or even the tribunal itself will depend on a number of things. The tribunal may be able to tell you what your options are, but legal advice may be desirable if you think the decision may be wrong.
What is case management?
Case management can involve a variety of steps, intended to ensure parties have exchanged full information about issues and attempted to resolve the dispute without a hearing. Case management may be conducted by senior tribunal staff or the file may be assigned to a tribunal member. There are three main elements (or steps) of case management: information exchange, promotion of settlement opportunities and (if settlement is not possible) setting the details of a hearing.
These case management steps may be taken at various times in the process, and there is no one set sequence or order for the steps to be taken. Instead, each tribunal determines what best fits for the type of disputes or claims and the people involved. For example, some tribunals may require parties to try mediation first, before they get too committed to their positions, while other tribunals may want parties to exchange their statement of issues and/or documents before they try mediation.
Case management steps are often done by telephone conference calls with all people involved participating. Often more than one telephone conference is required.
Some tribunals have very short time limits to make decisions and as a result may not be able to do any or very much case management.
Failure to comply with a tribunal’s case management orders or directions can result in the proceeding being dismissed or findings being made against the party who does not comply.
What information may be required as part of case management?
As part of case management, a tribunal may require the parties to provide more information.
Parties may be asked to provide the tribunal and each other with specific details about what the disagreement is about, what aspects they think they can agree on and what aspects they continue to disagree about and why. These are sometimes called statements of issues and agreed facts. At times, clear communication about issues can resolve matters at this early stage.
Tribunals may also ask parties to provide the tribunal and each other copies of any documents or other information they have about the matters they can’t agree on. This is intended to ensure parties have full knowledge of what the other parties’ evidence is and can review that evidence before a hearing to see if there is a possibility to resolve the matter without a hearing.Or, if that is not possible, to come to the hearing ready to respond to those documents.
How can case management promote settlement of a dispute?
As part of case management, the tribunal may require parties to attend a mediation or settlement conference, in person or by telephone, to try to resolve some or all of the matters disagreed on. (See below for more information about mediation and settlement conferences.)
What happens if a mediation or settlement conference required as part of case management is unsuccessful?
If the matter cannot be resolved without a hearing, case management can also be used to:
- set the date, location and maximum time allocated for the hearing. While most tribunals will try to set hearings on a date acceptable to all parties, that may not always be possible.
- explain the hearing process to the people involved, to make sure they come fully prepared for the hearing because once the hearing starts an adjournment may not always be possible.
- set some specific rules for the hearing, which might include:
– requiring the parties give advance notice of all people who they may ask to give evidence to the tribunal and the nature of their expected evidence. Failure to comply with any directions by the tribunal may limit the evidence that can be presented.
– setting limits on the number of witnesses that a person may ask to give evidence
– setting out the expected order for the various steps within the hearing: who will speak and give evidence first, and when questions may be asked
What is mediation?
Mediation is a process used to resolve disputes without the stress of an adversarial hearing. It is a voluntary negotiation where someone who is neutral — often a senior staff person or a tribunal member — facilitates the people involved to discuss issues in a non-adversarial way and, if possible, come to a mutually acceptable outcome instead of a win/lose decision after a hearing.
Mediation focuses on the interests (or needs) of the parties, as opposed to their positions. Interests are involved in every dispute and claim; a position is only a way to meet those interests. Interests can be:
- substantive, such as money, rights or resources;
- procedural, relating to the process or the way in which a dispute
is resolved; or
- psychological, relating to feelings or emotions about the issue.
Mediation is not a process intended to force someone to compromise, although compromise can be an element of the process.
What is the mediator’s role?
Mediators try to get parties to consider their own and each other’s interests, rather than positions. By looking for ways to address these underlying interests, the parties can create options for settlement that satisfy those interests.
The mediator acts as a facilitator, helping the parties to communicate and negotiate more effectively. It is not the mediator's role to adjudicate the issues in dispute — in fact, the mediator has no authority to do so.
The mediator helps to keep communications clear and respectful to reduce negative or emotional aspects and make settlement more likely. The mediator respects each party's limitations and a party is only expected to make a shift in their approach to the problem if they believe it is reasonable to do so.
How is mediation conducted?
Mediation has four steps that the mediator will guide the parties through:
- Mediator's opening statement – The mediator describes the process, establishes ground rules for the process, reviews the parties’ agreement to mediate and confirms commitment to proceed.
- Story development – Each party gives a synopsis of the facts of the dispute. The mediator then clarifies and re-states or frames the issues in terms parties can understand and accept.
- Identifying the interests – Using questions, the mediator shifts the parties’ focus from their positions to their underlying interests and formulates a goal statement that incorporates all of the interests identified.
- Generating options – The parties list and evaluate options for satisfying as many interests as possible, which may form the basis for reaching a settlement.
If a mutual agreement on how to resolve the matter is reached, the parties then discuss how to formalize the terms of settlement, usually either by written agreement or a consent order by the tribunal.
If the parties cannot reach an agreement, a hearing may still be held. The mediation discussions are confidential and without prejudice to the positions parties may wish to take in a hearing, if settlement is not reached.
What are some of the benefits of mediation?
Over the past decade, there has been a tremendous growth in the use of mediation in tribunals and elsewhere. Here are some of the key reasons:
- Informality – Mediation is less formal and stressful than adversarial hearings. This makes it easier for parties to communicate with each other more clearly and effectively.
- Privacy – Mediation takes place in private, while most tribunal hearings are open to the public. Using mediation can mean the details of the dispute remain private.
- Control over and satisfaction with the outcome – The parties have control over the outcome because, unlike in a hearing process, it is the parties who are responsible to determine what the outcome will be. Because the outcome is determined by the parties to meet their specific needs, the parties are more likely to be satisfied with a mediated outcome than a decision imposed by the tribunal.
- Speed – Disputes can be resolved more quickly with mediation than through a hearing.
- Cost – Time and money can be saved through early resolution of the dispute or claim.
- Better relationships – Often parties to a dispute have to continue to deal with one another on a personal or business basis after the dispute is resolved. Mediation can help to preserve better ongoing relationships because the parties have worked together to produce the outcome.
What is a settlement conference?
Settlement conferences can be very similar to mediation, but have some differences.
Like mediation, parties meet with a member of the tribunal, who facilitates discussion to resolve the dispute or claim. The discussions are confidential and without prejudice to the positions the parties may wish to take in a hearing, if settlement is not reached.
However, unlike mediation, the tribunal member conducting the settlement conference may take an active role in the discussions and in what a reasonable outcome might be. The tribunal member may offer non-binding opinions on an issue or give an opinion on the parties likelihood of success, if the dispute or claim proceeds to a hearing. Like mediation, the parties are not obliged to agree and can still go to a hearing if they are unable to agree.
A settlement conference will generally be held in person, but could be held by telephone conference call. The tribunal may require parties attending a settlement conference to bring or provide any documents or other evidence that supports their position.
Why would a tribunal require a settlement conference instead of mediation?
A settlement conference may be used instead of mediation where the tribunal has a duty to ensure any agreement the parties reach is in accordance with the legislative scheme that governs the dispute or claim. This is because in those cases a tribunal order may be required to put the settlement into place.
If the parties are unable to settle the appeal, the tribunal member that presided over the settlement conference will not conduct the hearing, unless all parties agree.
