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Small Claims Rule 7.3
On September 1, 2005, the monetary jurisdiction of the Provincial
(Small Claims) Court was increased from $10,000 to $25,000.
This booklet describes a process which parties may use to
require mediation of claims between $10,000 and $25,000. It
is an optional process. However, when it is used this process
allows one party to compel the other parties to attend a mediation
session to attempt to settle the case. The process is started
with a document called a Notice to Mediate for Claims Between
$10,000 and $25,000. The parties to the claim choose a mediator
and share the cost of the mediation. If an agreement to settle
the case is reached, the agreement can be filed with the court.
Note that
there is also a procedure for mediating claims under $10,000.
For information on the Court Mediation Program that is available
in certain registries, refer to a booklet called Court Mediation
Program. Information about how to obtain a copy of that booklet
is set out at the end of this page.
What
is mediation?
Mediation
is a collaborative process in which two or more people meet
with a mediator and attempt to resolve their dispute. Although
mediation is an informal process, the mediator structures
the discussion to help the parties reach an agreement.
Like judges,
mediators are neutral and unbiased. Unlike judges, however,
mediators do not have the power to decide the case. The purpose
of mediation is not to determine who wins and who loses, but
to and a solution that meet the needs of those involved in
the dispute. The mediator’s job is to help the parties
and a solution that satisfies everyone. The case settles only
if all parties to the dispute agree to the settlement.
What
can mediation do for me?
Mediation
can help resolve the dispute that brought you to Small Claims
Court. The best resolution to any dispute is usually one worked
out by the people involved. Mediation can be especially useful
if you have a continuing relationship with the other person
involved in the dispute, such as a neighbour or a business
associate.
You can
usually resolve your dispute more quickly and conveniently
through mediation than by going to trial and having a judge
decide your case.
Many people
get personal satisfaction from using the mediation process.
They prefer to take an active part in solving their own dispute,
rather than waiting for a judge to impose a decision.
How
does my case get to mediation?
The
other party will be required to attend a mediation session
if you follow this procedure:
STEP
1
Complete
the Notice to Mediate for Claims Between $10,000 and $25,000
(Form 29), making sure that the parties’ names are the
same as they appear on the Notice of Claim.
STEP
2
File
the Notice to Mediate for Claims Between $10,000 and $25,000
at the court registry where the Notice of Claim was filed.
The Notice to Mediate cannot be filed until at least one Reply
has been filed in the case.
STEP
3
Deliver
a copy of the Notice to Mediate to every other party in the
case. The Notice may be mailed, faxed or left with a person
or at the person’s residence or place of business.
Once the
Notice to Mediate is filed, the court registry will not schedule
a settlement conference until the registry is notified of
the outcome of the mediation.
How
do I find a mediator?
There
is no professional licensing body in BC that determines who
may be a mediator. However, there are a number of dispute
resolution organizations that set standards of practice for
mediators. You can look under “mediators” in the
yellow pages of your local telephone directory for mediators
who practice in your area.
The qualifications
and styles of mediators vary, as do the fees they charge.
You should contact a number of mediators to discuss their
training and experience, their mediation styles, their fees,
and other mediation-related charges (e.g., room rental for
the mediation session).
How
is the mediator appointed?
The
parties must select a mediator within 14 days after the Notice
to Mediate for Claims Between $10,000 and $25,000 has been
delivered to all parties. You should discuss the names of
possible mediators with the other parties.
If you
and the other parties cannot agree on a mediator within the
14-day period, you or any other party may apply to the BC
Mediator Roster Society (or another roster organization as
defined in Rule 7.3), for appointment of a mediator. In this
case, the Society or other roster organization will appoint
the mediator.
The organization
that appoints the mediator will notify all parties in writing
who has been appointed. You can contact the BC Mediator Roster
Society at:
Telephone
(Victoria): 250-356-8147
Toll Free (elsewhere in BC): 1-888-713-0433
Fax: 250-387-1189
Email: mediators@mediator-roster.bc.ca
You can
visit the Society’s website at:
www.mediator-roster.bc.ca
Or you
can write to the Society at:
PO Box 9222
Stn. Prov. Govt.
Victoria, BC V8W 9J1
Where
will the mediation session be held?
The
mediation session can be held at any location that the mediator
considers appropriate. If you or another party are represented
by a lawyer or articled student, it may be possible to hold
the mediation session at their office. If it is necessary
to rent space for the mediation session, that rental cost
will be included in the cost of the mediation.
When
will the mediation session be held, and how long will it last?
The
mediation session must be held within 60 days after the appointment
of the mediator and at least 7 days before the date set for
the settlement conference. A later date can be chosen if all
the parties agree and the mediator confirms that agreement
in writing. Or, the court may order a later date.
The mediation
session will usually last 2 hours. If all parties agree, the
mediation session can finish earlier or continue beyond 2
hours.
Who
attends the mediation session?
The
parties involved in the case attend the mediation session.
The parties are the claimants, defendants, and third parties.
Generally, witnesses do not attend. If a claimant, defendant,
or third party is an individual, he or she must attend the
mediation session in person. An individual cannot send a representative
in his or her place.
If a claimant,
defendant, or third party is an organization, a representative
who knows the facts of the case and who can make binding decisions
for the organization must attend the mediation session.
If a lawyer
or articling student represents you, he or she may attend
the mediation session with you.
You may
be permitted to participate by telephone if you are unable
to attend the mediation session in person, provided the other
parties agree or the registrar authorizes it.
What
happens at the mediation session?
You,
the other parties, and the mediator sit around a table in
the mediation room. All parties must complete and sign a Fee
Declaration (Form 30) prior to or at the beginning of the
mediation session. The Fee Declaration sets out how the mediation
costs will be paid. Mediation costs are shared equally, unless
all parties agree upon some other payment arrangement.
The mediator
will have you review and sign an agreement to mediate form.
This form explains the mediation process. The mediator can
answer other questions that you may have. Together you decide
what issues need to be resolved. Each party has a chance to
tell their story and to explain what is important to them.
You are
encouraged to ask questions at any time during the mediation
session to be sure that you understand what is being said.
Mediators
sometimes meet separately with the parties. The mediator will
explain this process at the beginning of the mediation session.
The mediator
will help you and the other parties consider possible solutions.
You are not required to reach a final agreement at mediation.
But, if you do find a way to resolve your case, you can enter
into a written agreement that can be filed with the court.
What
should I bring to the mediation?
You
should bring copies of all relevant documents to the mediation
session – including the Notice of Claim, Reply, Third
Party Notice, written contracts, invoices, reports, estimates
or photographs. Having these documents available will support
your claim and help the other party understand your concerns.
How
do I prepare for mediation?
Besides
getting your documents ready, there are some questions you
can ask yourself to help you prepare for mediation. For your
own use you may want to try writing down the answers to these
questions:
- What
is the best result I can hope for?
- What
is the worst result that could happen?
- What
is really important to me in this dispute?
- What
are the other party’s main concerns?
- How
can I answer those concerns?
What
if one of the parties does not attend?
If
the claimant does not attend the mediation session, the case
may be dismissed. If the defendant does not attend the mediation
session, the claimant can ask for a default judgment.
To obtain
a dismissal or default judgment, a Verification of Default
form (Form 31) must be completed by the mediator and given
to the parties attending. Any party may file the Verification
of Default at the registry. If neither party attends the mediation
session, the registrar will make an order dismissing each
disputed claim.
What
happens if we reach an agreement through mediation?
If
you reach agreement on some or all of the issues in dispute,
the mediator will file a Result of Mediation form (Form 24)
at the registry. You will also prepare and sign a Mediation
Agreement, which may be filed at the registry and enforced
through the court.
What
happens if only some issues are settled?
If
there is no resolution or only some issues are resolved in
the mediation session, you will receive a notice to attend
a settlement conference, where a judge will help you prepare
your case for trial.
Will
the judge be told what happened at the mediation?
No.
The judge is told only what issues were settled at the mediation
session, but nothing about what happened or what was said.
If
the dispute is not settled, doesn’t mediation just add
more time to my court case?
Even
if mediation does not resolve your case, it’s unlikely
that it will be a wasted effort. If you do have a trial, it
may be shorter and easier than if you hadn’t tried mediation
first. Your settlement conference to prepare for trial will
be shorter. See Small Claims Court booklet # 5 Getting
Ready for Court.
How
can I get more information about Small Claims Court?
The Ministry of Attorney General has published a series of
booklets that describe the court process. They are available
from any Small Claims Court registry. (If there isn't a Small
Claims Court near you, your local government
agent may have the booklets.) The booklets can also be
found under "BC Court, Small Claims Court" through
the provincial government website: www.gov.bc.ca/ag
The titles in the series are:
#1 WHAT
IS SMALL CLAIMS COURT?
#2 MAKING A CLAIM
#3 REPLYING TO
A CLAIM
#4 SERVING DOCUMENTS
#5 GETTING READY FOR
COURT
#6 GETTING RESULTS
#7 COURT MEDIATION
PROGRAM FOR CLAIMS UP TO $10,000
#8 MEDIATION FOR CLAIMS BETWEEN $10,000
AND $25,000
The Small Claims Court
RULES provide more detailed information. The Rules have
been written for non-lawyers.
The Registry
staff at any Small Claims registry can help you. They cannot
give legal advice or fill out your forms for you, but they
can answer many of your questions about Small Claims Court
procedures. If you cannot go in person, consult your telephone
directory under "Court Services" in the Provincial
Government blue pages for the phone number of the registry
or on line at: www.gov.bc.ca/ag
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