Mediation can save your time, reduce legal costs, and help resolve disputes faster, even if parties are not initially on board.
Mediation is a process in which parties involved in contemplated or ongoing litigation attempt to settle their differences with the assistance of a neutral mediator. This process helps reduce the costs and delays of pursuing litigation in court and facilitates the early resolution of disputes. A voluntary mediation can occur at any time during a legal dispute, provided that all parties agree to mediation. In the absence of such an agreement, a party can still invoke a mandatory mediation by serving a Notice to Mediate on all other parties.
Mandatory Mediation
A Notice to Mediate can be served any time after 60 days from the filing of the first response to civil claim, but no later than 120 days before the date of trial.1 The parties must jointly appoint a mutually acceptable mediator within 14 days of the Notice to Mediate being served on all parties.2 Once a mediator has been appointed, the mediation must occur within 60 days of the appointment.3
Exemptions from Mandatory Mediation
There are limited circumstances under which a party to an action can be exempt from a mandatory mediation. A party will not need to attend mediation if they have already attended a mediation in relation to issues in the action. In family actions, a party does not need to attend a mediation if they have obtained a protection order or peace bond against another party, or if the mediator finds that mediation is not appropriate.
Beyond the circumstances outlined above, a party can only be exempt from a mediation after being served with a Notice to Mediate if a court finds that attending mediation would be materially impracticable or unfair. To date, a court has not granted an exemption on this basis. In Le Soleil Hotel & Suites v. Le Soleil Management, 2008 BCSC 953, the court found that a party's pessimistic view regarding the prospect of settlement and hostility towards other parties did not justify an exemption from mediation, noting that settlement rates in both voluntary and mandatory mediations are high.
Conclusion
A Notice to Mediate is a useful tool which enables a party to initiate mandatory mediation when other parties to an action will not attend voluntary mediation. Even if an opposing party is skeptical about mediation, the process can still offer significant savings in legal fees and time. Therefore, a party should strongly consider utilizing the Notice to Mediate as an effective option to resolve a legal dispute.
Footnotes
1. In family law actions, a Notice to Mediate can be served at any time after 90 days from the filing of the first response to family claim, but no later than 90 days before the date of trial.
2. In civil actions with 5 or more parties, the parties have 21 days to appoint a mutually acceptable mediator after the Notice to Mediate has been served on all parties.
3. But no later than 7 days before the date of trial in civil actions and 14 days before the date of trial in family actions, unless by court order or agreement.
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.
