Small Claims Mediation (20:X)
There are three types of mediation under the Small Claims court rules. Parties are free to mediate on their own. See Section III. D.: Alternative Dispute Resolution.
A. Claims of $1 0,000 or less - Rule 7.2
There is no cost to mediate under this rule unless a party requires an interpreter. Rule 7.2 mediations operate in four of the registries, namely: Surrey, Victoria, Nanaimo, and North Vancouver.
Rule 7.2(2) applies to all claims of $10,000 or less:
- that involve a claim relating to the construction, renovation, or improvement of a building;
- that are one of the first 10 to 16 cases in which replies are filed in the month (number varies by registry—see 'Small Claims Rules', BC Reg 261/93, Schedule D for specific information on each registry);
- where the parties consent and a judge refers to mediation; and
- where, prior to the notice of settlement conference being mailed, a party completes and files Form 21.
Rule 7.2 does not apply to claims arising from a motor vehicle accident where only liability for property damage is disputed or where there is a claim for personal injury (Rules - Schedule E: ss 1-5). This rule also does not apply where a party is a person under disability.
Parties must attend the mediation session in person unless an application is filed for an adjournment (Rules 7.2(11), (11.1), and (12)), a teleconference (Rule 7.2(14)), or an exemption (Rule 7.2(9)). Any party served with a notice of mediation session may be accompanied by a lawyer or articled student (Rule 7.2(17)(c)). If a party fails to attend the mediation session, the party in attendance will receive a verification of non-attendance (Form 22) that can be filed with the Registrar (Rule 7.2(22)). After filing Form 22, the party in attendance can file a request for judgment or dismissal (Form 23), which dismisses the claim if the party not attending is the claimant or gives a default order if the party not attending is the defendant (Rules 7.2(23)-(26)).
B. Claims Exceeding $10,000 – Rule 7.3
This rule applies to all registries except the Vancouver (Robson Square) court registry. See Section III. D.: Alternative Dispute Resolution.
Any party to a proceeding where the amount of a claim, counterclaim, or third party notice exceeds $10,000 may initiate mediation by filing a Notice to Mediate (Form 29) and serving it on every other party to the proceeding (Rules 7.3(2), (3), and (5)). If mediation has been scheduled all parties must select a mediator, attend the mediation, and agree on the amount that each party will pay towards the costs of mediation (Rules 7.3(9)-(10), (17)-(23), and (33)-(36)); by default, the parties will split the cost (Rule 7.3(35)(b)(i)). If the parties cannot agree on a mediator, the BC Mediator Roster Society may be requested to appoint one (Rule 7.3(10)).
Parties must attend the mediation session in person unless an application is filed for adjournment (Rule 7.3(30)), for a teleconference (Rule 7.3(25)), or for an exemption (Rule 7.3(28)). If a party fails to attend as required, the mediator will fill out a verification of default (Form 31) and provide it to the party in attendance (Rule 7.3(37)). After filing Form 31, the party in attendance can file a request for judgment or dismissal (Form 23) which dismisses the claim if the party not attending is the claimant or gives a default order if the party not attending is the defendant (Rules 7.3(38)-(41)).
C. Mediation in Vancouver (Robson Square) – Rule 7.4
Claims exceeding $5,000 or personal injury claims in any amount are subject to mandatory mediation (Rule 7.4(2)). There are a few exceptions (Rule 7.4(3)) including where the claim is for a financial debt and Rule 9.2 applies. The Registrar will serve the parties with a Notice of Mediation (Form 27) informing them of the date, time, and place of the mediation session (Rule 7.4(17)).
If the claim is for damages for personal injuries, the claimant must file and serve the other parties with a certificate of readiness (Form 7) and required documents (Rules 7.4(12)-(16)). The claimant should review the applicable rules for the proper timeline and how to obtain extensions.
Each party must attend the mediation session in person unless an application is filed for adjournment (Rules 7.4(18), (19), and (20)), for a teleconference (Rule 7.4(23)), or unless an exemption is granted (Rules 7.4(5) and (6)). If a party fails to attend the mediation session, the party in attendance will receive a verification of non-attendance (Form 22) that can be filed with the Registrar (Rule 7.4(31)). After filing Form 22, the party in attendance can file a request for judgment or dismissal (Form 23), which dismisses the claim if the party not attending is the claimant or gives a default order if the party not attending is the defendant (Rules 7.4(32)-(35)).
D. Preparing for Mediation
Preparation is essential in order to achieve the most from mediation. Each party should provide copies of relevant documents to the other party. Parties have the ability to create their own resolution and should consider creative settlement options. Mediation is not a forum to assess blame or resolve legal questions; it is designed to end the dispute in a manner that satisfactorily addresses the interests, legal and otherwise, of each party. It is important to listen to the other party expressing his or her interests and allow the mediator to help the parties resolve the dispute.
Mediation is a flexible process that allows the mediator to help the parties achieve a settlement. A mediator is not necessarily a lawyer, but is a skilled, experienced professional. Although mediation sessions can vary with respect to process, there are generally some standard steps that are followed.
All parties and representatives will be seated at a table with one to three mediators. The mediators will describe the mediation process, and ask each person attending to sign an Agreement to Mediate. This must be signed in order for the mediation process to proceed. The Agreement to Mediate form includes a confidentiality clause (any information disclosed in the session that is not otherwise discoverable is inadmissible and mediators cannot be called to testify in later proceedings), and ensures that the parties present have full authority to settle the case.
After signing the Agreement to Mediate, both parties will have a short time to tell their story. The mediator will summarize the key points in dispute. Once the main issues are identified, the mediator will look for common interests in an attempt to assist parties to resolve the dispute. The mediator will assist the parties to negotiate and reach an amicable resolution. During the process, it is not uncommon for a mediator to have a private conference with each party.
If the parties agree to a resolution, the mediator will draft an Agreement setting out the terms of the resolution. It may include monetary and non-monetary terms, and may have a non-compliance clause setting out consequences for failing to fulfil the obligations set out in the Agreement. If there is no non-compliance clause, the default amount will be the original amount claimed in the action. The mediator will file the agreement in the Small Claims Court registry after each party signs the agreement.
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