Mediation has long been considered a useful and effective alternative to litigation in Canada. Parties meet, on a without prejudice basis, to resolve their differences with the assistance of a trained mediator. Statistics show that from 2002-2012, 37,000 motor vehicle cases in B.C. were taken to mediation and 78 per cent of these cases settled at mediation each year. From a 2014 survey of family lawyers who attended the 2014 National Family Law Program in Whistler, B.C., it was reported that they took about one quarter of their family law cases to mediation and 87.1 per cent of those mediated cases achieved settlement of some sort, including 56.4 per cent of which achieved full settlement.
In addition to consensual mediation, in British Columbia, litigants may initiate mandatory mediation in a civil, commercial or family action under the Notice to Mediate (General) Regulations, the Notice to Mediate (Residential Construction) Regulation and the Notice to Mediate (Family) Regulation.
The Regulations provide the procedure and mechanism for scheduling a mandatory mediation in B.C. Generally, upon issuing and receiving a mandatory notice to mediate, parties must agree on a mutually acceptable mediator within 14 or 21 days (depending upon the type of case), failing which a party may apply to a designated roster organization to choose a mediator, who then schedules the mediation with all the parties. Parties can turn to the Court to enforce compliance with the steps required or to obtain an exemption from attending mediation. In the case of family law disputes, mediators themselves may consider ending the mandatory mediation process where he or she concludes that mediation is not appropriate, or the mediation process will not be productive. If one side fails to comply with the Regulations, such as failing to attend a scheduled mediation, the other party may issue an allegation of default. Where such an allegation of default has been proven, the Court has the power to stay the action until the participant has complied with the steps required for mediation and ultimately, the Court may even dismiss the action or strike the response and grant judgment, unless the matter is a family dispute.
Clearly, the legislature is in favour of promoting mediation. Indeed, the Family Law Act specifically promotes the use of alternate dispute resolution as the preferred option to resolve family disputes. But mandatory mediation? It would seem counter-intuitive to force a litigant to attend a consensual meeting and try to negotiate a settlement in good faith. Accordingly, lawyers may wish to consider the pros and cons of mediation before taking this step to force a mediation.
Pros
- It is private and confidential
- It may provide a fixed and shorter time limit to resolve the issues (may be completed in 30-60 days as compared to an 18-24 months before a trial can be completed)
- It is cheaper (as ultimately, the issues will be resolved in a shorter time period, resulting in paying less legal fees and disbursements)
- The parties may choose a mediator with expertise in the particular issue or dispute
- The parties fashion their own resolution instead of having a third party such as a Judge make the decisions (and there is no “winner takes all”), meaning that there is a greater likelihood of compliance with the settlement
- The parties can control the mediation process. It is more informal (no evidence rules and affidavits)
- The settlement is final, resulting in a signed Memorandum of Understanding and/or a Consent Dismissal Order, making the chances of appeal or of changing the settlement less likely
- The parties may be able to preserve their relationship (eg. in landlord/tenant situations and in parenting/children disputes)
- The mediation is conducted in a neutral space (not in a courtroom, which may be intimidating)
- Often, a mediation may be the first time the litigants are meeting since the dispute began and committing time, resources and energy towards a resolution for a scheduled duration of time may result in settlement
- Parties are not obliged to settle at the mandatory mediation but are obliged to attend and participate in good faith – and they can return to the litigation if there is no settlement
- The mandatory aspect of the mediation removes any perception of weakness of one’s case as it may be assumed that the weaker party wishes a mediated settlement rather than going to court
Cons
- Mandatory mediation taints the consensual process, which is the hallmark of the mediation process
- Unwilling participants may reduce the chance of settlement at the mediation
- Since the cost of mediation is paid by the parties, such costs may be “wasted” if there is no settlement
- Mediation may delay one’s day in court and have the ultimate decider, a Court of law, rule on the issue
- Certain issues cannot be resolved at mediation, such as the need to obtain a declaratory Judgment or when a legal precedent needs to be set
- Mandatory mediation may be a stalling tactic
- Mandatory mediation may be a discovery tactic so that the other side can then later strengthen any potential weaknesses in their case
- There is no guarantee of a resolution
- There is no guarantee that both sides will attempt to mediate in good faith
- It is hard to determine and prove whether a party has failed to participate in good faith
- An incompetent mediator may actually hinder the resolution
At the end of the day, lawyers and their clients should carefully consider their settlement objectives and overall assessment of their dispute before issuing a mandatory Notice to Mediate.
If you have any questions, please contact me or call me at (604) 331-8309.
