Notice to Mediate Regulation (Motor Vehicle)
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 enables any party to a motor vehicle action in B.C. Supreme Court to compel all other parties to the action to mediate the matters in dispute. An essential feature of the Notice to Mediate process is that it is party-driven; in other words, it allows any party to a specific motor vehicle action to make an informed assessment that mediation would be productive and then to require the other parties to attend a mediation session.
Background
Research shows that, despite a high degree of support for mediation programs and other non-binding dispute resolution processes, few litigants actually volunteer to use them. Purely voluntary programs are, therefore, not likely to contribute significantly to reduction of the cost and delay often associated with litigation. However, research also shows that settlement rates in mediation are high, regardless of whether the program is mandatory or voluntary. In fact, studies show that settlement rates and party satisfaction rates do not differ significantly in voluntary and mandatory mediation.
Voluntary mediation of personal injury motor vehicle disputes has an established track record in B.C. About 80 per cent of such cases settle. However, the number of cases mediated voluntarily is relatively low. By providing the needed legislative support for mediation, the Notice to Mediate process contributed to reducing cost and delays in motor vehicle actions.
The Notice to Mediate Regulation was developed by the Dispute Resolution Office of the Ministry of Justice through consultation with justice system stakeholders, including the Law Society of B.C., the Canadian Bar Association (B.C. Branch), the Coalition Against No-Fault in B.C. and ICBC.
Questions and Answers
What is mediation?
Mediation is a process for resolving disputes. Two or more parties to a dispute meet and attempt to settle the matters in dispute with the assistance of a mediator. 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.
Most motor vehicle actions settle without going to trial anyway, so why use the Notice to Mediate?
While most motor vehicle actions — approximately 95 per cent — settle without a trial, many settlements occur shortly before trials commence, by which time parties have incurred significant costs, both in time and money. The Notice to Mediate process promotes earlier settlement.
At what stage in the action can the Notice to Mediate be used?
The Notice to Mediate 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.
Are there any exemptions to the Notice to Mediate process?
Yes. Exemptions to the Notice to Mediate process are allowed in certain limited circumstances, such as when all parties have already participated in a mediation session or if a judge directs that one or more parties is exempt from attending the mediation.
What if ICBC uses the Notice to Mediate to trigger early mediation and the full extent of a person's injuries is not known or their injuries have not stabilized?
If the full extent of injuries is not known or the injuries have not stabilized, 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. Also, a party may apply to the court for an adjournment of the mediation. The court has wide powers 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. 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.
What happens if the parties cannot agree on the choice of 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 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 section 7 of the Notice to Mediate Regulation.
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 are deleted by the parties.
What happens if one of the parties simply refuses to participate in the mediation?
If one party fails to comply with a provision of the Notice to Mediate Regulation, any of the other parties may file a declaration of default with the court. If this occurs, the court has a wide range of powers, such as staying the action (putting it on hold) until the defaulting party attends mediation or making such orders as to costs that the court considers appropriate.
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 voluntary 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. However, the statistics bear out that parties who attend mediation, even when forced, will normally reach a settlement. From 2002 to 2010, about 30,000 motor vehicle actions have been mediated, resulting in about 24,000 resolutions, for an average settlement rate of about 80 per cent. (The settlement range over the entire time period was between 76 and 83 per cent.)
Who pays the mediator and what will it cost me?
The cost of the mediator will be shared 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. The mediator will probably spend about an hour preparing for the mediation and the mediation session will last about three hours. Parties will also have to pay for their lawyers if they represent parties at the mediation.
