June, 2002

Notice to Mediate
(General) Regulation

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This bulletin provides general information concerning mediation of disputes. For additional information that is specific to mediation of family disputes, you should also see the bulletin called Family Mediation.

The Notice to Mediate process

The Notice to Mediate process enables any party to a wide range of actions in the Supreme Court to make an informed assessment that mediation would be productive, and then to require the other parties to attend a mediation session.

Some jurisdictions have imposed a blanket obligation to mediate all or selected categories of civil cases. The Notice to Mediate differs from this approach because the requirement to mediate is initiated by a party to the action.

Notice to Mediate Regulation (Motor Vehicle)

The Notice to Mediate process was first introduced as a dispute resolution option for motor vehicle actions. The Notice to Mediate Regulation, B.C. Reg. 127/98, came into force in April 1998. In the four years since it was introduced, the process has been used in more than 6,000 actions. In approximately 74 per cent of the actions mediated under the Notice, all issues were resolved. An additional 10 per cent of actions settled after delivery of a Notice, but before the mediation session.

In the spring of 1999 an independent research organization conducted an evaluation of the Notice to Mediate process in the motor vehicle context. A number of lawyers who had delivered or received a Notice were canvassed, and 88 per cent of respondents felt that the Notice to Mediate process could usefully be expanded to include other types of civil, non-family, matters.

Notice to Mediate (Residential Construction) Regulation

In June 1998 The Commission of Inquiry into the Quality of Condominium Construction in British Columbia: The Renewal of Trust in Residential Construction (the Barrett Report) observed that the traditional adversarial process has not worked well in complex residential construction disputes.

The litigation system does not serve the homeowner well….The delays and expense are detrimental to defendants as well as plaintiffs.

Every [court] case the commission was told about had taken much longer than the parties wanted - and was still unresolved. Legal expenses were another serious problem for strata councils and condo owners. In many cases the legal bills appeared to be as onerous as the estimated cost of repairs.

The commission recommended that the proposed Homeowner Protection Act make available an alternative dispute resolution option for disputes arising from problems surrounding residential construction. The Notice to Mediate (Residential Construction) Regulation, B.C. Reg. 152/99, came into force in May 1999. It provides that "any party to a residential construction action may initiate mediation in that action"

Notice to Mediate (General) Regulation

Throughout 2000 the Dispute Resolution Office of the Ministry of Attorney General consulted widely with the bar, the mediation community and the Supreme Court concerning expansion of the Notice to Mediate process to include a wide range of civil, non-family, actions. During the consultation process a draft regulation was widely distributed, and comments and suggestions were invited. The Notice to Mediate (General) Regulation, B.C. Reg. 4/2001, came into force on February 15, 2001.

The Notice to Mediate (General) Regulation applies to Supreme Court actions; it does not apply to originating applications. In addition, the following actions are excluded: family law proceedings, actions brought under the Judicial Review Procedure Act, claims for compensation for physical or sexual abuse, and actions to which the other Notice to Mediate regulations apply.

Questions and answers about the expanded Notice to Mediate process for Supreme Court actions follow.

Dispute Resolution Office
Ministry of Attorney General
PO Box 9222, Stn Prov Govt
Victoria, BC V8W 9J1
Tel: 250 356-8147
Fax: 250 387-1189
E-mail: AG.DRO.Victoria@gov.bc.ca
Web site: www.ag.gov.bc.ca/dro

Enquiry BC will forward long distance calls at no charge:

• in Vancouver, call 660-2421
• elsewhere in B.C., call 1-800-663-7867

When you call, ask to be connected to the Dispute Resolution Office, Ministry of Attorney General.

Questions & Answers

What is the Notice to Mediate process?
The Notice to Mediate process enables any party to an action in the Supreme Court to compel all other parties to the action to mediate the matters in dispute. Authority for the Notice to Mediate (General) Regulation is contained in section 68 of the Law and Equity Act. The Regulation came into force on February 15, 2001.

What is mediation?
Mediation is a process for resolving disputes. Two or more parties to a dispute meet and attempt, with the assistance of a mediator, to settle the matters in dispute. The mediation takes place in a private, informal setting where the parties participate in the negotiation and design of a settlement. The mediator has no decision-making power; the dispute is settled only if all of the parties agree to the settlement.

Does the Notice to Mediate (General) Regulation apply to all proceedings in the Supreme Court?
No. The Notice to Mediate (General) Regulation applies to Supreme Court actions commenced by writ of summons and statement of claim; it does not apply to originating applications. In addition, the following actions are excluded: family law proceedings, actions brought under the Judicial Review Procedure Act, aims for compensation for physical or sexual abuse, and actions to which the other Notice to Mediate regulations apply.

Does the Notice to Mediate (General) Regulation apply only to actions commenced after the Regulation came into force?
No. The Notice to Mediate can be used in connection with any action to which the Regulation applies, regardless of when the action was commenced.

At what stage in the action can the Notice to Mediate 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.
Are there any exemptions to the requirement to attend mediation under the Notice to Mediate process?
Yes. Exemptions to the requirement to attend mediation are allowed in limited circumstances, such as when all parties have already participated in a mediation session in relation to the same dispute, or if a judge orders that one or more parties is exempt from attending the mediation. In addition, the parties can agree that a particular party need not attend the mediation session. Also, the Notice can only be used once in connection with the same action, unless the court orders otherwise.

What if a party uses the Notice to Mediate to trigger early mediation and the full extent of damages cannot yet be determined?
If the full extent of damages cannot yet be determined there is little likelihood that a settlement will be reached in mediation, and there is no point in one party compelling the other parties to mediate. This is a critical factor to consider in deciding whether, and when, to use the Notice to Mediate. A party may apply to the court for an adjournment of the mediation, and the court has wide power to order an adjournment to a later date on such terms and conditions as the court considers appropriate.

How does the Notice to Mediate process work?
The party who wishes to initiate mediation 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 a later specified date is agreed to by all parties or is ordered by the court.

What is a pre-mediation conference?
A pre-mediation conference is an organizational meeting at which such matters as pre-mediation exchange of information, obtaining and exchanging expert reports, and scheduling are considered. The mediator is required to hold a pre-mediation conference if in his or her opinion the action is sufficiently complex to warrant it. Where the mediator gives notice of a pre-mediation conference, the 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 (see previous question and answer concerning exemptions).

What happens if the parties cannot agree on the choice of mediator?
If the parties themselves are unable to agree upon a mediator with 14 or 21 days (whichever is applicable), any party may apply to a roster organization designated by the Attorney General to appoint the mediator. The British Columbia Mediator Roster Society has been designated as a roster organization for this purpose. The Society maintains a list of trained and experienced mediators who have agreed to subscribe to a code of mediation conduct. For more information about the Society contact:

British Columbia Mediator Roster Society
311-895 Fort Street
Victoria, BC V8W 1H7
Victoria Phone: 250 381-9006
Toll-Free Phone: 1-888-713-0433
Fax: 250 381-9022
E-mail: mediators@mediator-roster.bc.ca
Web site: www.mediator-roster.bc.ca

If a party applies to a roster organization for appointment of a mediator, do the parties have any opportunity for input into who will be appointed?
Yes. The process that a roster organization must follow in selecting a mediator is set out in sections 8 through 11 of the Regulation. Briefly, the process is as follows:

• Within seven days of a party applying to a roster organization, the roster organization must deliver to all parties an identical list of at least six possible mediators.
• Within seven days of receiving the list, each party may delete from it up to two names to which he or she objects and each party may number the remaining names in order of preference.
• Within seven days of receiving the list, each party must return the list (with names deleted and/or numbered to indicate preference or with no changes made) to the roster organization. If a party fails to return the list within seven days of receiving it, the party is deemed to have accepted all of the names on the list.
• The roster organization then has seven days to appoint a mediator, taking into account a number of criteria, including the preferences indicated by the parties. Other criteria to be considered by the roster organization are:
  • the need for the mediator to be impartial,
    
  • the qualifications of the mediator,
    
  • the mediator's fees,
    
  • the mediator's availability,
    
  • the nature of the dispute, and
    
  • any other consideration likely to result in the selection of an impartial, competent
    and effective mediator.

Can the roster organization select a mediator whose name was not on the list delivered to the parties?
Yes, but only if all of the names on the list have been deleted by the parties.

What happens if a party simply refuses to participate in the mediation?
If a party fails to comply with a provision of the Notice to Mediate (General) Regulation, any of the other parties may file an Allegation of Default and make application to the court for an order. If this occurs the court has a wide range of powers; for example, the court may order that a scheduled pre-mediation conference or a mediation session occur on any terms that the court considers appropriate, order that a party attend one or both of a scheduled pre-mediation conference and mediation session, and/or stay the action until the party attends one or both of a scheduled pre-mediation conference and a mediation session. The court may also make any order it considers appropriate with respect to costs.

Do I have to use the Notice to Mediate if I want to have my dispute mediated?
No, but in order for the dispute to be mediated (without using the Notice to Mediate), all parties must voluntarily agree to the mediation, and this includes agreeing on a mediator.

If all the parties don't agree to voluntarily mediation, what is the point in forcing unwilling parties to mediate? Isn't it a contradiction to require someone to mediate?
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. The Notice to Mediate process for motor vehicle actions has been in place in B.C. for four years. It has been used in over 6,000 actions, with a settlement rate of approximately 74 per cent in the mediation. A further 10 per cent of actions settled after delivery of a Notice, but before the mediation session.

Who pays the mediator, and what will it cost me?
The cost of the mediation must be paid equally by the parties, unless the parties agree to some other cost-sharing arrangement. The hourly rates of mediators vary, and this is a factor to consider in selecting a mediator. You will also have to pay for your lawyer if he or she represents you at the mediation.