Notice to Mediate (Residential Construction) 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 residential construction 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.
The Notice to Mediate process was first introduced as a dispute resolution option for motor vehicle actions in April 1998 (see DRO bulletin: Notice to Mediate Regulation - Motor Vehicle). The Notice to Mediate (Residential Construction) Regulation came into force in May 1999. The regulation provides that “any party to a residential construction action may initiate mediation in that action.”
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 of the parties agree to the settlement.
Does the Notice to Mediate (Residential Construction) Regulation apply only to actions involving leaky condos?
No. The Notice to Mediate can be used in connection with any B.C. Supreme Court action involving residential construction. Residential construction is defined as “construction, renovation or repair of a building, or a portion of a building, that is intended for residential occupancy.”
At what stage in the action can the Notice to Mediate be used?
The notice can be used at any time after an action has been commenced, but no later than 180 days before the date set for trial, unless the court orders otherwise or all parties consent.
Are there any exemptions to use of 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 in relation to the same dispute or if a judge orders that one or more parties is exempt from attending the mediation. 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 the damage or the cost of repair is not known?
If the full extent of the damage or the cost of repair is not known, 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 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. Party is defined as including an insurer of a party to the action. Within 21 days after the notice has been delivered to all parties, the parties must jointly agree upon and appoint a mediator. Within 60 days after the appointment of the mediator, a pre-mediation conference must be held, unless the pre-mediation conference is waived by all parties. The mediation must occur within 150 days after the mediator's appointment, unless all parties agree to a later date or a later date 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 disclosure of documents, obtaining and exchanging expert reports, and scheduling are considered. Because residential construction disputes can be very complex and involve many parties, such an organizational meeting may assist the mediation process.
What happens if the parties cannot agree on the choice of mediator?
If parties are unable to agree on a mediator within 21 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 the 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 4 of the Notice to Mediate (Residential Construction) 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 (Residential Construction) 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. 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. 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 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.