What is a Supreme Court of BC “Notice to Mediate?”
Anyone involved in a Family Law or Civil Law Dispute in the Supreme Court of British Columbia can require all other party(ies) to attend out-of-court mediation, before proceeding any further with their courtroom battle.
This is usually done in an attempt to resolve the dispute(s), either in whole or in part, via the much more efficient and much less expensive process of mediation.
Assuming that a Notice of Family Claim or Notice of Civil Claim has already been filed and served, the next step is to file and serve a “Notice to Mediate.”
There are two types of “Notice to Mediate,” one for Family Law, [the “Notice to Mediate (Family)“], and one for Civil Litigation, [the “Notice to Mediate (General)“].
Family law includes divorce, separation, division of family property or debts, child custody, spousal support, child support, child custody, child access, parenting, other disputes related to the maintenance or dissolution of spouses and any children.
General civil litigation includes wills and estate disputes, commercial contract disputes, labour and employment agreements, loans and debts, negligence claims, motor vehicle accidents and injuries, etc.
These “Notice to Mediate” programs provide both the process and the framework for selecting a mediator, scheduling mediation sessions, and compelling mandatory attendance by all parties to any such mediation sessions.
There are some subtle differences between the Family Law and Civil Litigation processes but, generally speaking, upon filing with the court and then serving a “Notice To Mediate” upon all the parties.
If it is a Family Law matter, they must then jointly appoint a mutually acceptable mediator within 14 days.
If it is a Civil Litigation matter, then the parties have to jointly appoint a mediator within 14 days if there are 4 or less parties, or within 21 days if there are 5 or more parties.
If the parties are unable to jointly appoint a mutually agreeable mediator, then anyone involved in the litigation can apply to a designated roster organization to choose a mediator on their behalf.
However, since one of the main advantages of mediation is that the parties have total control over the eventual outcome(s), it can seem foolhardy to hand such an important decision as the appointment of the mediator over to an unknown third party.
For this reason, we always recommend that the parties maintain control over this key decision, and simply choose the mediator themselves.
Parties can also turn to the Court to enforce compliance with the procedural steps or to obtain an exemption from attending mediation altogether.
In the case of Family Law disputes, mediators themselves are also empowered to end the mediation process if the mediator concludes that mediation is not appropriate – which might include scenarios of current family violence, where there is an unfixable power imbalance, or where the mediator believes that the mediation process is genuinely unlikely to be safe, useful, or productive.
There are also a number of mechanisms built into the process to ensure that parties actually participate in a meaningful way.
For example, if one side fails to comply with the mandatory mediation requirements, (such as failing to provide the necessary information to the mediator or if they fail to attend a scheduled mediation session), then the disadvantaged party can ask the Court to postpone the Supreme Court action until the non-compliant party has fulfilled the required steps, or award costs or special costs against the non-compliant party, or make any other court orders that are reasonably necessary to enforce compliance.
In extreme cases of non-compliance the Court may even dismiss the Supreme Court action altogether, or strike out the non-compliant party’s response to civil claim and grant judgment in favour of the compliant party, (this remedy is only available in Civil Litigation and is not available in a Family Law dispute, for obvious reasons).
The Legislation Favours Mediation.
The Family Law Act specifically encourages the use of mediation, arbitration, collaborative family law and other “out-of-court” processes (collectively known as “alternate dispute resolution,” or “ADR”) as the preferred method of resolving all Family Law disputes.
The Family Law Act also requires all family dispute resolution professionals, (including the parties’ own lawyer), to discuss with their clients the advisability of using various types of dispute resolution processes (e.g. mediation and arbitration) in order to resolve their family law matter. Lawyers must also provide their clients with specific information about what resources and facilities exist to help in this regard – which, obviously, ought to also include the “Notice to Mediate” process, as discussed above.
It has been noted by many that part of the attraction of the “Notice to Mediate” process is both its simplicity and its clarity.
As helpful as the mediation process can be, the legislation also outlines specific circumstances where mediation might not either be required or be appropriate.
Reasons include where there is already an agreement to mediate, when all parties have already participated in one prior mediation in the same dispute, where it is recognised that mediation is unlikely to result in a settlement, or where, in the case of a civil lawsuit, the total extent or amount of damage(s) claimed is not yet known.
How Successful Has This Model Been?
The BC Attorney General’s website notes that the advantage of the “Notice to Mediate” process is that it simply “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 [program] is that mediation works even when a party is forced to mediate.” It goes on to note that: “From 2002 to 2010, about 30,000 motor vehicle actions were mediated. About 24,000 resolved for an average settlement rate of about 80 per cent.”
If you or your organization are currently involved in any type of lawsuit filed with the Supreme Court of BC, regardless of whether it is a Family Law claim, (commenced via a Notice of Family Claim), or part of a general Civil Action, (commenced via a Notice of Civil Claim), you owe it to yourself to seriously consider the “Notice to Mediate” process and discuss it with your lawyer, if you have one.
Mediation is often viewed as the easier, softer, way of resolving a legal dispute. It is invariably the much more time efficient and considerably less expensive route, when compared to courtroom litigation.
Regardless of the reasons why you might choose mediation (or arbitration) to resolve your legal disputes, our Professional Accredited Mediators and Arbitrators are here to help.
Please Contact Us Now For A Free, No Obligation, Initial Consultation