Notice to Mediate (General) Regulation
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 B.C. 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.
The Notice to Mediate (General) Regulation applies to B.C. 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 & Answers
What is the Notice to Mediate process?
The Notice to Mediate process enables any party to an action in B.C. Supreme Court to compel all other parties to the action to mediate the matters in dispute.
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 parties agree to the settlement.
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 time frame.
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 are 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 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. Mediators are required to hold a pre-mediation conference if, in their opinion, the action is sufficiently complex to warrant it. Where the mediator gives notice of a pre-mediation conference, 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 parties cannot agree on the choice of 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 Attorney General to appoint the mediator. The Mediate BC 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.
If a party applies to a roster organization for the appointment of a mediator, do parties have any opportunity for input into the appointee?
Yes. The process that a roster organization must follow in selecting a mediator is set out in sections 8 to 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 they object and 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 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 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 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 a 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 parties don’t agree to mediation voluntarily, 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 personal injury actions has been in place in B.C. for over 10 years. It has been used in over 23,000 actions, with settlement rates (in or shortly after mediation) of approximately 80 per cent.
Who pays the mediator and what will it cost me?
The cost of the mediation must be paid equally by parties, unless 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. Parties will also have to pay for their lawyers if they represent parties at the mediation.