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Mediation (Over $10,000)

What is mediation?

Mediation is alternative to court, where a third party assists the parties to settle their dispute. Mediation is often quicker and less expensive than going to trial and asking a judge to make a verdict. Mediation is ideal for disputes between people who have an ongoing relationship, such as neighbours or business colleagues.

Trials are confrontational, with one side versus the other side. Mediation seeks to build consensus between both parties so that a mutual agreement can be reached. Mediation is less formal and can be a more productive process to solve the dispute when compared to a trial.

A neutral and unbiased third party called a mediator will help resolve a disagreement to the satisfaction of both parties. A mediator does not make a decision, but helps the parties work through the issues and come to a final resolution.

What is the mediation process for claims between $10,000 and $35,000?

Mediation is optional for claims between $10,000 and $35,000. However, if one party requests mediation, then both parties must participate. The process allows one party to compel the other party to attend a mediation session where they attempt to settle the case. They will choose a mediator and share the cost equally.

The process starts when one party files a Notice to Mediate (form 29) under Small Claims Rule 7.3, but the notice cannot be filed until at least one reply has been previously filed in the case. The mediator is chosen by the parties and the cost of mediation is shared. If the parties reach an agreement, it is filed with the court and enforceable by the court.

What type of cases are excluded from this mediation program?

In Small Claims Court, there are some cases that do not qualify for the mediation program. These include:

  • Matters that can be dealt with under Rule 9.2 (Summary Trial for Financial Debt at Robson Square)
  • All cases where the parties and cause of action is the same as a proceeding brought in the Supreme Court of British Columbia
  • All cases where one of the parties has obtained against the other party a protection order under the Family Law Act or a s. 810 Peace Bond under the Criminal Code

How do we choose a mediator?

The parties must find a mediator within 14 days after the Notice to Mediate has been served by one of the parties. If the parties do not agree on a mediator one can be appointed under Rule 7.3 from the Mediate BC or another organization that has mediators.

When and where will mediation take place?

The parties have to decide where to mediate – perhaps a lawyer’s office – and the mediation session must be held within 60 days after the appointment of the mediator and at least 7 days before the date set for the settlement conference.

How long will mediation take?

It depends on how complex the issues are, how prepared the parties are, and how open the parties are to listening to the other side. Mediation is flexible and can be adjusted to suit the needs of the parties.

Who attends mediation?

All the parties involved in the dispute attend the mediation, including the claimant, the defendant, any third party, and their lawyers (if any). Generally, witnesses do not attend.

The mediator must complete a Verification of Default (Form 31) and give it to the parties attending in order to obtain a dismissal or default judgment. If neither party attends, the registrar will make an order dismissing each disputed claim.

What happens at the mediation?

The mediator will review and sign the Fee Declaration (Form 30) prior to the beginning of the session. It details how the mediation costs will be paid - usually they are shared equally. The mediator will then review the Agreement to Mediate and answer any questions about the process.

Together you will decide on the issues to be resolved and both sides will present their stories and what is most important to them. Possible solutions will be discussed and if a resolution is reached, a final agreement will be drawn up that can be filed with the court. If the mediation does not work then the next step will be to go to a settlement conference.

How do I prepare for mediation?

You should think about what you want, what is important to you and what you may be willing to compromise about. You will want to think about the best and most realistic outcome that could result from the mediation for both you and the other party.

Use the Mediation Worksheet to help you prepare for your mediation session. You should also bring your original documents, invoices, witness statements, and/or photographs to the mediation as well as copies for the mediator and other party. In addition, review the Guide to Mediation in BC, provided by the Ministry of Attorney General.

How do I prepare for mediation?

If an agreement is made on some or all of the issues in dispute, the mediator will file a Result of Mediation (Form 24) at the registry and you will also prepare and sign a Mediation Agreement (Form 25) which is filed and enforced through the court. If some or none of the issues are resolved, the next step in the Small Claims Court process is for the case to proceed to a settlement conference.

What if mediation does not solve the problem?

If the mediation does not result in an agreement, the next step in the Small Claims Court process is a settlement conference. Sometimes, some of the issues in a dispute are resolved at mediation, but not all issues. When this happens, the issues that have been decided are put into an agreement and the rest of the case proceeds to the settlement conference.

Does unsuccessful mediation just add more time to my court case?

Even if mediation does not fully resolve your case, it is unlikely that it will be a wasted effort. Preparing for mediation will also help you prepare for the settlement conference. And, if your case does go to trial, it may be shorter and easier than if you had not participated in mediation first.

Will the settlement conference judge be told what happened at the mediation?

The settlement conference judge is told only what issues remain to be resolved - not what happened or what was said at the mediation.

Can mediation take place after a settlement conference?

If your dispute was not mediated before the settlement conference, you may ask the judge at the conference to refer your case to mediation.

What happens if one of the parties does not attend the mediation?

If the claimant does not attend the mediation, the case may be dismissed. If the defendant does not attend the mediation, the claimant may ask for an immediate judgment against the defendant.

What happens if you need to change the date of the mediation?

If you cannot make the date set for the mediation, you can request a date change. The first step is to ask the other party to agree to the change. If he or she agrees, then you can file a consent order, with his or her written consent, at the registry.

If you are unable to reach an agreement with the other party, you may file an Application to the Registrar (Form 16) at least seven days before the date set for mediation. The application must explain the reason you want to change the date and that you asked the other party to consent. You will need to explain why the mediation date is unreasonably inconvenient. Unreasonably inconvenient is defined in Rule 7.3(31), as including a family emergency or the party is required to attend court on the same day as the mediation. If the application is granted by the registrar, the parties must jointly set a new date.

If you can’t physically attend the mediation, you can apply to the registrar at least 7 days before the mediation using Form 16 and request that you attend the mediation by telephone, if you don’t live near the courthouse or there are exceptional circumstances. You can also make an application to attend by telephone within 7 days of the mediation if exceptional circumstances exist.

For more information see the guide prepared by the Ministry of Attorney General: Mediation