Canada: Mediation In British Columbia: Does Mandatory Mediation Mean Mandatory Attendance For Lloyds Underwriters?

Last Updated: June 22 2017
Article by Karen L. Weslowski


While claims against building professionals and consultants are common, very few of those claims ever go to trial. The vast majority of claims are resolved through mediation.

In British Columbia, any party to an action can force the other parties to attend a mediation by issuing a Notice to Mediate pursuant to the Notice to Mediate (General) Regulation, B.C. Reg. 77/2013 (the "Regulation"). This raises an important issue for certain Underwriters at Lloyd's of London ("Lloyd's") who now insure a significant number of building professionals and consultants in British Columbia.

While local insurers have representatives in close proximity to the mediation who can attend at minimal expense, the same cannot be said for Lloyd's. Questions have been raised as to whether the Regulation requires a London-based Lloyd's representative to attend the mediation in person, whether it is sufficient for Lloyd's to have a local representative, such as a claims examiner, attend on their behalf, or whether Lloyd's may simply attend by phone or rely upon attendance by defence counsel, vested with settlement authority, as their representative.

Fortunately for the travel weary, the language of the Regulation and the limited case law to date suggest that, while mediation may be mandatory, in-person attendance at mediation by a London-based Lloyd's representative is not. The Regulation requirements will be met through attendance by a local claims examiner on behalf of Lloyd's.

Mandatory Mediation

The Regulation requires every party who receives a Notice to Mediate to: (1) participate in the pre-mediation conference; and (2) engage in mediation at a mediation session in relation to the action.

A party may be exempted from these requirements if all of the participants agree to excuse that party, and that agreement is confirmed by the mediator in writing. Pursuant to the Regulation, a party is not permitted to unilaterally declare that they will not be attending the mediation, regardless of that party's position on liability or relative liability exposure.

Upon application, the Regulation allows the court to grant a party an exemption from attending a mediation. However, such exemptions will be granted rarely and only where "it is materially impracticable or unfair to require the party to attend", as stated by the British Columbia Supreme Court in Matsqui First Nation v Canada, 2015 BCSC 1409.

The court in Matsqui noted that British Columbia appears to be unique among the provinces in imposing the standard of "material impracticability or unfairness" as the basis for exempting parties from mandatory mediation. This standard has received very little judicial consideration.

In Executive Inn Inc. v Tan, 2008 BCCA 93 ("Executive Inn"), the Court of Appeal noted that the section of the Regulation allowing for exemption from mediation was enacted to ensure that the court in an appropriate case would be endowed with a broad power to make orders to ensure the efficacy of the mediation process. However, pessimism and hostility on the part of parties compelled to attend a mediation are often predictable and, in and of themselves, will generally not justify exemption from the mandatory mediation process.

Definition of "Party" Required to Attend Mediation

The definition of "party" in the Regulation includes "an insurer to a party of record to the action". An "insurer" means an insurer, as defined in the Financial Institutions Act, that has provided a policy of insurance to a party in the action and, under that policy, is obligated to indemnify the party for liability imposed on the party in the action. The definition of insurer also includes a surety of the party in which a claim has been made on a surety bond related to matters in issue in the action.

The inclusion of the indemnity obligation in the definition of "insurer" raises the question as to whether an insurer who is defending on a reservation of rights falls within the definition of an "insurer". That is an interesting question that has not been considered by the courts.

Attendance at Mediation by "Representative"

The Regulation provides that a party may attend a mediation session by "representative" if "the party is not an individual" or "the party is a resident of a jurisdiction other than British Columbia and will not be in British Columbia at the time of the pre-mediation conference or the mediation session, as the case may be."

The Regulation does not contain a definition of "representative". The following provision may suggest that a representative must be someone other than the party's lawyer, as the Regulation states: "[a] party or representative who attends a pre-mediation conference or a mediation session may be accompanied by a lawyer." The alternative interpretation is that where the representative is not a lawyer, they may be accompanied by a lawyer. The issue of whether a representative and a lawyer are mutually exclusive has not been considered by the courts.

Other provisions within the Regulation, along with case law interpreting those provisions, suggest that a "representative" for the purposes of mediation need not be an in-person representative from Lloyd's.

The British Columbia Court of Appeal explained the rationale behind the non-resident provision in Executive Inn, where the court commented that this provision is "designed to ensure that generally a party out of the jurisdiction not be incommoded in purse or in personal circumstances by being required to come from outside British Columbia to attend a mediation session held here." Although not expressly stated as such, this commentary indicates that in-person attendance at a British Columbia mediation by a representative of Lloyd's is not required by the Regulation.

The express requirements for a representative attending a mediation also lead to the conclusion that an in-person representative from Lloyd's is not required. The Regulation states that if a representative attends the mediation, that representative must satisfy the following requirements: (1) be familiar with all relevant facts on which the participant, on whose behalf the representative attends, intends to rely; and (2) have full authority to settle, or have access at the earliest practicable opportunity to a person who has, or to a group of persons who collectively have, full authority to settle, on behalf of that participant. A properly instructed claims examiner can satisfy these requirements.

Mere phone attendance by a London-based Lloyd's representative may not meet the mandatory attendance requirements of the Regulation. For attendance at the pre-mediation conference, the Regulation states that a person entitled or required to attend that conference may do so by telephone "or other communications medium if the person is a resident of a jurisdiction other than British Columbia and will not be in British Columbia at the time of the conference". The Regulation contains no such exception in relation to the mediation. Of course, the parties can consent to allow attendance by phone, and this is often done at mediations without any difficulty.


The mandatory attendance requirements prescribed by the Regulation reflect the legislature's belief that a more effective and successful mediation is likely to result from the parties' personal attendance at mediation. This generally allows the parties to realize the full benefits of the mediation process.

However, to avoid excessive cost or inconvenience, parties not resident in British Columbia, such as Lloyd's, are permitted to attend by representative, which may include a local claims examiner. Practically speaking, many mediations in British Columbia are successfully conducted through attendance by the insured and lawyer vested with settlement authority, which is an acceptable practice provided that all parties have consented to this arrangement. Plaintiff's counsel in particular may be well-served to keep this in mind when considering whether to attempt to compel personal attendance by a Lloyd's representative at mediation. The expense required for such attendance may be better directed to a contribution to settle the Plaintiff's claim.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Karen L. Weslowski
In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.