Mediation (Rule 7.3)
Meditation is a process where a neutral third party helps the parties in a case reach agreement. The mediator does not have the power to make any rulings, but will assist and guide the discussions.
The parties in a case can at any time hire a mediator to conduct a private mediation. This requires both parties to agree on attending mediation as it is usually a voluntary process. If you think you can settle your case through mediation be sure to explore this option. To learn more see Mediation. However, under Rule 7.3, one party can compel the other party to attend a mediation for claims between $10,000 and $35,000.
If you or the other party files and serves a Notice to Mediate form, then both parties must participate. Notice cannot be filed until at least one reply has been filed in the case. If you reach an agreement, it is filed with the court and is enforceable by the court. The process allows one party to compel the other party to attend a mediation session. If they do not attend, the court may dismiss their claim or make a default order against them.
Usually, mediations happen before 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.
Types of cases excluded from mandatory mediations
In Small Claims Court, there are some cases that do not qualify for the Rule 7.3 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 are 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 to Prepare for Rule 7.3 Mediation
You and the other parties must find a mediator within 14 days after the Notice to Mediate has been served. If you do not agree on a mediator, one can be appointed under Rule 7.3 from the Mediate BC or another organization that has mediators.
You will also have to agree on where to mediate 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.
- Think about what you want, what is important to you and what you may be willing to compromise about
- Do your research and understand the strength of your case and the strength of the other party’s case
- Think about the best and most realistic outcome that could result from the mediation for both you and the other party
- Bring your original documents, invoices, witness statements, and/or photographs to the mediation as well as copies for the mediator and other parties
What to Expect
The mediator will review and sign the Fee Declaration 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 result in a settlement agreement, then the next step will be to go to a settlement conference.
How long a mediation takes 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.
Outcomes from Mediation
If an agreement is made on some or all of the issues in dispute, the mediator will file a Result of Mediation at the registry and you will also prepare and sign a Mediation Agreement which is filed and enforced through the court.
If the mediation does not result in an agreement, the next step in the Small Claims Court process is usually 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. The settlement conference judge is told only what issues remain to be resolved - not what happened or what was said at the mediation.
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 you will have a better understanding of the key points of conflict. If your case does go to trial, it may be shorter and easier than if you had not participated in mediation.
Changing the Date
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 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.
If You Don’t Go
All the parties involved in the dispute must attend the mediation, including the claimant, the defendant, any third party, and their lawyers (if any). If a party does not attend the mediation, the mediator must complete a Verification of Default 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.