Mediation for claims up to $10,000

Small Claims Forms related to this subject:

Notice to Mediate, SCR Form #21

Notice of Withdrawal

 

INTRODUCTION:

This factsheet describes the rules surrounding both voluntary and mandatory mediation, and the basic procedures involved.

Mediation is a method of dispute resolution in which two or more parties meet with the assistance of an impartial mediator to attempt to agree to a settlement of the dispute between them. The mediator has no authority to issue any orders or to compel the parties to enter into a settlement. The mediator’s role is simply to assist the parties to reach an agreement among themselves.

 

Mediation for Claims up to $10,000

The courts currently provide for voluntary mediation services at no extra cost to Small Claims parties in the Nanaimo, North Vancouver, Robson Square, Surrey and Victoria registries, for claims up to $10,000. In addition, a limited number of cases each month are referred automatically to mandatory mediation. 

 

Mediation for Claims between $10,000 and $25,000

Mediation is entirely optional for parties with claims between $10,000 and $25,000. One party can begin the process by filing a Notice to Mediate. Parties to the claim will then choose a mediator and share the costs for the mediation.

 

Provincial Small Claims Court Pilot Project

All cases filed at Vancouver Robson Square valued between $5,000 and $25,000 (except for financial debt claims under Rule 9.2) and all personal injury cases will be referred for a mandatory two-hour mediation session. Mediators will be assigned by the BC Dispute Resolution Practicum Society at no extra cost to the parties.

Small Claims Rule 7.2: Mediation for Claims up to $10,000

Small Claims Rule 7.3: Mediation for Claims between $10,000 and $25,000

 

Voluntary vs. Mandatory Mediation:

There are two ways your case could end up in mediation:

1)      One party chooses to mediate.

2)      Your case is automatically referred for mediation by the Court.

Either the claimant or the defendant to a Small Claims action can choose to mediate, by filing a Notice To Mediate with the Court Registry. The Court Mediation Program will then schedule a mediation date that all parties must attend.

In some cases, however, even if neither party files a Notice to Mediate, the case will automatically be referred for mediation. Parties will receive a Notice of Mediation Session indicating the date, time and location where the mediation will occur. All parties MUST attend.

Click here to view an example of a completed Notice to Mediate.

 

What happens in a mediation, step by step:

Who attends:

All parties served with a Notice of Mediation Session must attend – including any claimants, defendants, and third parties.

If a party is not an individual, a representative of that party may attend as long as they are familiar with all relevant facts to the dispute and have the authority to negotiate and commit to any settlement which is reached. For example, if a tenancy board was named as a defendant in a claim, the President of that organization could attend the mediation on behalf of the entire board as long as he/she was able to speak for the other members.

In addition, all parties may be accompanied by a lawyer or an articled student.

Witnesses do not attend the mediation, and generally no one else will be permitted to observe unless the mediator and all parties consent to their presence.

 

What if one of the parties does not attend the mediation?

The mediator will file a verification of non-attendance with the Registrar. If the claimant does not attend the mediation, the case may be dismissed. If the defendant does not attend the mediation, the claimant may ask for a default judgment.

 

The mediator:

Mediators are trained to help parties resolve their problems through discussion. They sometimes work alone, or in teams of 2 or 3, and their job is to make sure each party has a chance to explain their side of the story. The mediator helps parties focus on what is important in order to reach their own resolution without going to trial and having a Judge impose a decision.

Mediators are usually good at exploring the parties’ needs, goals, and possible solutions; however, a mediator will not take sides and will not make a decision. In a mediation it is the parties themselves who must find a solution, and the mediator will try to help you get there.

Remember: You are not trying to convince the mediator that you are right, the mediator is just there to help guide the parties towards finding a resolution that everyone can agree to.

 

What happens at the mediation:

On average, a mediation takes approximately 2 hours to complete. The date, time and location of the mediation is set out on the Notice of Mediation Session.

The mediation begins with the parties sitting around a table and making introductions. The mediator(s) will review an Agreement to Mediate with all parties and ask everyone to sign a document stating that they will make a serious attempt to resolve all issues fairly during the mediation. Confidentiality is also guaranteed as part of the mediation, meaning that all parties may speak freely during the mediation without prejudicing their case if the mediation is unsuccessful and the matter goes to trial. The mediator will also answer any questions you may have about the mediation process.

The mediator will ask each party to explain their side of the issue while everyone else listens respectfully. Then they will help the parties decide what issues need to be resolved.

At some point, the mediator will likely talk to each party separately to get a better sense of how the matter could be resolved. The mediator may propose an offer to settle from one party to another, and can help identify which aspects of the settlement offer need to be altered in order to ensure success.

You are not required to reach an agreement during the mediation process. If the parties do reach an agreement, the mediator will bring everyone back together in order to set out the terms of the agreement in writing. The agreement can be enforced by the Courts if necessary. If you do not reach a final agreement by mediation, your case will continue through the court process as normal. The next step will be to attend a settlement conference where you will meet with a Judge to help you prepare for trial. To learn more about this process, please read Factsheet 12: The Settlement Conference.

Please note: Sometimes the mediation will resolve some of the issues but not all. If this happens, the mediator will create a written agreement to reflect only the issues which have been settled, and the rest of the case will continue through the court process as normal.

 

What to bring to a mediation:

You should bring along any documents that are relevant to the dispute, not just those that you intend to rely on in court to support your claim. These can include photos, invoices, letters, reports, etc. Bring along the originals, plus a copy for the other party to look at.

Think about what evidence will help explain your concerns and position to the other parties, and try to present this information in an organized manner. 

 

Preparing for the mediation:

It is sometimes helpful to write out a chronological and detailed list of the events leading up to the dispute to make sure that you do not forget anything important that has occurred.

You should also think about the following questions:

1)      What is really important to me in this dispute?

2)      What is likely to be really important to the other parties in this dispute?

3)      What would be the best result of the mediation?

4)      What would be the worst result of the mediation?

5)      What result could I live with if it meant not having to proceed to trial?

It is important to approach the mediation with the knowledge that this is simply one opportunity to resolve the dispute, and you do not need to come to an agreement during the mediation. It is also important to remember; however, that all parties will need to be flexible and make some concessions if an agreement is likely to be reached. Resolving an agreement prior to trial is often invaluable in terms of piece of mind. Parties are trading the lack of control and uncertainty of trial for the certainty of a mediated agreement that everyone has worked towards creating together.

 

Advantages/disadvantages:

Mediation has many advantages, including:

1)      The process is quicker, more convenient, and less costly than going to trial.

2)      Parties experience increased overall satisfaction with the process, because they have worked together with the mediator to find a solution, rather than asking a Judge to decide their case.

3)      The mediation process allows for more creative solutions than the Court could impose.

4)      Mediation can help preserve ongoing relations between parties.

5)      The mediation process is informal, and can therefore be less intimidating than the going to Court.

6)      Even if the parties fail to reach an agreement, and go back to court to get the matter settled, the amount of thought that has gone into deciding what the issues are, and where the parties’ interests really lie, is likely to make it much easier to reach a solution than it would have been otherwise.

7)      Information disclosed during the mediation may assist in assessing the strength and weaknesses of your position and your opponents.

 

In general, even parties who have experienced failed mediations have been satisfied with the overall process; however, some possible disadvantages of mediation include:

1)      There is no guarantee that the process will bring about a resolution.

2)      At least one of the parties may have received a better result if the Judge had imposed a decision.

3)      Information disclosed during the mediation may assist your opponent in assessing the relative strengths and weaknesses of your case.

 

Enforcing a Mediated Settlement:

At the conclusion of a successful mediation, the parties will all sign a written document detailing the terms of the agreement. The agreement will generally include a reasonable time frame during which the parties will complete the terms of the agreement. For example, the Defendant might have two weeks to issue a cheque for the agreed upon amount to the Complainant. Once the Complainant receives the agreed upon funds, they will file a Notice of Withdrawal with the Registry and the case will be concluded.

In the meantime, the mediator will file a copy of the signed agreement with the Registry. This agreement can then be enforced in the same ways as any other settlement agreement. If either party fails to comply with the terms of the agreement, the party not in default can choose to start a court action to enforce the terms of the settlement, or can choose to proceed to trial with the original action as if there was no settlement reached.

 

Click here to view an example of a completed Notice of Withdrawal