June 2002

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 the Supreme Court to compel all other parties to the action to mediate the matters in dispute. Authority for the Notice to Mediate Regulation (B.C. Reg. 127/98) is contained in section 44.1 of the Insurance (Motor Vehicle) Act. The regulation came into force on April 14, 1998.

The Notice to Mediate process does not impose a blanket obligation to mediate. Rather, it provides legislative support for mediation of motor vehicle actions. 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 84 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 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 Attorney General 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 about the Notice to Mediate process for motor vehicle actions follow.

Contact for more information

Dispute Resolution Office
Ministry of Attorney General
PO Box 9222, Stn Prov Govt
Victoria, BC V8W 9J1
Tel: 250 387-1480
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 is a process by which any party to a motor vehicle action in the Supreme Court may compel all other parties to the action to mediate the matters in dispute. Authority for the Notice to Mediate Regulation (B.C. Reg. 127/98) is contained in section 44.1 of the Insurance (Motor Vehicle) Act. The regulation came into force on April 14, 1998.

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.

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 the trial is to commence, by which time the parties have incurred significant costs, both in time and money. The Notice to Mediate process promotes earlier settlement.

Can the Notice to Mediate be used today in connection with all existing Supreme Court motor vehicle actions?
Yes. The Notice to Mediate process can be used in connection with any Supreme Court motor vehicle action, regardless of when the action was commenced.

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 close of pleadings (after the statement of claim and statement of defence 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 the 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, 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. Within 10 days after the Notice to Mediate has been delivered to all parties, the parties must jointly agree upon and appoint 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 the parties themselves are unable to agree upon a mediator within 10 days, any party may apply to a roster organization designated by the attorney general to appoint the mediator. The Mediate BC Society (formerly known as 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, contact:

Mediate BC Society
Attention: Mediator Roster Program
Suite 177 – 800 Hornby St.
Vancouver, B.C. V6Z 2C5
Phone: 604 681-6050
Toll-Free Phone: 1-888-713-0433
Fax: 604 681-6080
E-mail: mediators@mediatebc.com
Web site: http://www.mediatebc.com/

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 section 7 of the Notice to Mediate 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 10 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 10 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 10 days of receiving it, the party is deemed to have accepted all 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, 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 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 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. In 1997, more than 3,000 motor vehicle actions were referred to voluntary mediation, and there was an 84 per cent success rate in the approximately 1,500 mediations that took place.

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. In the four years since the Notice to Mediate process was introduced, it 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.

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. You will also have to pay for your lawyer if he or she represents you at the mediation.