Notice to Mediate (Residential Construction) Regulation

Notice to Mediate process

The Notice to Mediate process allows any party to residential construction actions in B.C. Supreme Court to require the other parties to attend a mediation session.

Please note: If all parties to an action voluntarily agree to mediation, and also agree on a mediator, the Notice to Mediate is not necessary.

When the Notice to Mediate can be used

The notice can be used at any time after an action has been commenced, but no later than 180 days before the date set for trial, unless the court orders otherwise or all parties consent.

How the Notice to Mediate process works

The party who wishes to mediate delivers a Notice to Mediate to all other parties to the action. “Party” includes an insurer of a party to the action. The parties must jointly agree upon and appoint a mediator within 21 days after the notice has been delivered to all parties.

Within 60 days after the appointment of the mediator, a pre-mediation conference must be held, unless the pre-mediation conference is waived by all parties.

The mediation must occur within 150 days after the mediator's appointment, unless all parties agree to a later date or one is ordered by the court.

Exemptions to the process

Exemptions to the Notice to Mediate process are allowed in certain circumstances. These may include when all parties have already participated in a mediation session in the same dispute or if a judge orders that one or more parties are exempt from attending the mediation. Also, the notice can only be used once in the same action, unless the court orders otherwise.

Mediation before damage or repair costs are known

If the extent of the damage or the cost of repairs is not yet known, it is not likely mediation will result in a settlement. There is no point, then, in one party compelling the other parties to mediate. This is critical when deciding whether and when to use the Notice to Mediate.

Also, a party may ask the court to adjourn the mediation. The court has the power to order an adjournment to a later date on the terms and conditions it considers appropriate.

Pre-mediation conferences

A pre-mediation conference is a meeting at which such matters as pre-mediation disclosure of documents, obtaining and exchanging expert reports, and scheduling are considered. Conferences may assist the mediation process because residential construction disputes can be complex and involve many parties.

Agreeing on a mediator

If parties are unable to agree on a mediator within 21 days, any party may apply to a roster organization designated by the justice to appoint the mediator. The The Alternative Dispute Resolution Institute of British Columbia (ADRBC) is a roster organization for this purpose. The society maintains a list of trained and experienced mediators who have agreed to a code of conduct.

Appointing a mediator through a roster organization

The process that a roster organization must follow to select a mediator is set out in section 4 of the Notice to Mediate (Residential Construction) Regulation.

Refusing to participate in mediation

If a party fails to carry out a provision of the Notice to Mediate (Residential Construction) Regulation, any of the other parties may file a Declaration of Default with the court.

If this occurs, the court has a range of powers, including:

• Putting the action on hold until the defaulting party attends mediation or
• Making orders about costs

The advantage of the Notice to Mediate process

The Notice to Mediate requires the parties to attend a mediation session. It does not require them to settle the dispute. The experience in many other jurisdictions, and the experience with B.C.'s Notice to Mediate for motor vehicle actions, is that mediation works even when a party is forced to mediate.

From 2002 to 2012, about 35,000 motor vehicle actions were mediated with an average settlement rate of 78%.

Cost

Mediators’ rates vary. The cost is generally shared equally between all parties, unless they agree to some other arrangement. Parties will also have to pay for their lawyers if they represent parties at the mediation.