Small claims - Mediation for claims between $10,000 and $35,000

PDF version of Guide #8 - Mediation for Claims Between $10,000 & $35,000

Small claims rule 7.3

On June 1, 2017, the monetary jurisdiction of the Provincial (small claims) Court was increased from $25,000 to $35,000. This guide describes a process which parties may use to require mediation of claims between $10,000 and $35,000. The process is optional. However, it allows one party to compel the other parties to attend a mediation session to attempt to settle the case.

The process is started with a document called a notice to mediate for claims between $10,000 and $35,000. The parties to the claim choose a mediator and share the cost of the mediation. If an agreement to settle the case is reached, the agreement can be filed with the court.

Note: Occasionally, the Ministry of Attorney General and the Provincial Court run pilot projects to explore ways to improve small claims court. If the registry where your case is filed is running a pilot project, it might not follow the process in this guide. You can find more information on pilot project processes or from your court registry.

1. What can mediation do for me?
2. How does my case get to mediation?
3. How do I find a mediator?
4. How is the mediator appointed?
5. Where will be mediation session be held?
6. When will the mediation session be held, and how long will it last?
7. Who attends the mediation session?
8. What happens at the mediation session?
9. What should I bring to the mediation?
10. How do I prepare for mediation?
11. What if one of the parties does not attend?
12. What happens if we reach an agreement through mediation?
13. What happens if only some issues are settled?
14. Will the judge be told what happened at the mediation?
15. If the dispute is not settled, doesn't mediation just add more time to my court case?

What is mediation?

Mediation is a collaborative process in which two or more people meet with a mediator and attempt to resolve their dispute. Although mediation is an informal process, the mediator structures the discussion to help the parties reach an agreement.

Like judges, mediators are neutral and unbiased. Unlike judges, however, mediators do not have the power to decide the case. The purpose of mediation is not to determine who wins and who loses, but to find a solution that meet the needs of those involved in the dispute. The mediator’s job is to help the parties and a solution that satisfies everyone. The case settles only if all parties to the dispute agree to the settlement.

1. What can mediation do for me?

Mediation can help resolve the dispute that brought you to small claims court. The best resolution to any dispute is usually one worked out by the people involved. Mediation can be especially useful if you have a continuing relationship with the other person involved in the dispute, such as a neighbour or a business associate.

You can usually resolve your dispute more quickly and conveniently through mediation than by going to trial and having a judge decide your case.
Many people get personal satisfaction from using the mediation process. They prefer to take an active part in solving their own dispute, rather than waiting for a judge to impose a decision.

2. How does my case get to mediation?

The other party will be required to attend a mediation session if you follow this procedure:

Step 1

Complete the notice to mediate for claims between $10,000 and $35,000 (SCR Form 29), making sure that the parties' names are the same as they appear on the notice of claim.

Step 2

File the notice to mediate for claims between $10,000 and $35,000 at the court registry where the notice of claim was filed. The notice to mediate cannot be filed until at least one reply has been filed in the case.

Step 3

Deliver a copy of the notice to mediate to every other party in the case. The notice may be mailed, emailed, faxed or left with a person or at the person’s residence or place of business. Once the notice to mediate is filed, the court registry will not schedule a settlement conference until the registry is notified of the outcome of the mediation.

3. How do I find a mediator?

Choosing a mediator is key to a successful mediation. All parties to the dispute must agree on the mediator. You can get the names of mediators from:

• friends or relatives
• your lawyer
• The Alternative Dispute Resolution Institute of British Columbia (ADRBC)
• the lawyer referral service of the Canadian Bar Association British Columbia Branch

The qualifications and styles of mediators vary, as do the fees they charge. You should contact a number of mediators to discuss their training and experience, their mediation styles, their fees, and other mediation- related charges (e.g., room rental for the mediation session).

4. How is the mediator appointed?

The parties must select a mediator within 14 days after the notice to mediate for claims between $10,000 and $35,000 has been delivered to all parties. You should discuss the names of possible mediators with the other parties.

If you and the other parties cannot agree on a mediator within the 14-day period, you or any other party may apply to the Alternative Dispute Resolution Institute of British Columbia (ADRBC) for appointment of a mediator.ADRBC will appoint the mediator in this case.

ADRBC will notify all parties in writing who has been appointed.

You can contact the Alternative Dispute Resolution Institute of British Columbia at:

Telephone (toll free): 1 877 332-2264
Telephone (Local Vancouver): 604 736-6614
Fax: 604 736-6611
Email: mcrelations@adrbc.com
Website: https://adrbc.com/

Or you can write to ADRBC at:

ADR Institute of British Columbia
Suite 347 – 1275 West 6th Avenue
Vancouver, B.C. V6H 1A6

5. Where will the mediation session be held?

The mediation session can be held in any manner the mediator considers appropriate. If you or another party are represented by a lawyer or articled student, it may be possible to hold the mediation session at their office, or when all parties agree one or more parties may attend the mediation session by another method of attendance (telephone, videoconference or other means of electronic communication). If it is necessary to rent space for the mediation session, that rental cost will be included in the cost of the mediation.

6. When will the mediation session be held, and how long will it last?

The mediation session must be held within 60 days after the appointment of the mediator and at least seven days before the date set for the settlement conference. A later date can be chosen if all the parties agree and the mediator confirms that agreement in writing. Or, the court may order a later date.

The mediation session will usually last two hours. If all parties agree, the mediation session can finish earlier or continue beyond two hours.

7. Who attends the mediation session?

The parties involved in the case attend the mediation session. The parties are the claimants, defendants, and third parties. Generally, witnesses do not attend. If a claimant, defendant, or third party is an individual, they must attend the mediation session in person, or by another method of attendance. An individual cannot send a representative in their place.

If a claimant, defendant, or third party is an organization, a representative who knows the facts of the case and who can make binding decisions for the organization must attend the mediation session in person, or by another method of attendance.

If a lawyer or articling student represents you, they may attend the mediation session with you.

You may be permitted to participate by telephone, videoconference or other means of electronic communication if you are unable to attend the mediation session in person, provided the other parties agree or the registrar authorizes it.

8. What happens at the mediation session?

You, the other parties, and the mediator sit around a table in the mediation room. All parties must complete and sign a fee declaration (SCR Form 30) prior to or at the beginning of the mediation session.

The fee declaration sets out how the mediation costs will be paid. Mediation costs are shared equally, unless all parties agree upon some other payment arrangement.

The mediator will have you review and sign an agreement to mediate form. This form explains the mediation process. The mediator can answer other questions that you may have. Together you decide what issues need to be resolved. Each party has a chance to tell their story and to explain what is important to them.

You are encouraged to ask questions at any time during the mediation session to be sure that you understand what is being said.

Mediators sometimes meet separately with the parties. The mediator will explain this process at the beginning of the mediation session.

The mediator will help you and the other parties consider possible solutions. You are not required to reach a final agreement at mediation. But, if you do find a way to resolve your case, you can enter into a written agreement that can be filed with the court.

9. What should I bring to the mediation?

You should bring copies of all relevant documents to the mediation session – including the notice of claim, reply, third party notice, written contracts, invoices, reports, estimates or photographs. Having these documents available will support your claim and help the other party understand your concerns. If you will be attending the session by a manner other than in person you will need to send the mediator, before the mediation session, all the documents and reports that are relevant to your dispute. Arrangements can be made with your mediator on the best way for them to receive them.

10. How do I prepare for mediation?

Besides getting your documents ready, there are some questions you can ask yourself to help you prepare for mediation. For your own use you may want to try writing down the answers to these questions:

• What is the best result I can hope for?
• What is the worst result that could happen?
• What is really important to me in this dispute?
• What are the other party’s main concerns?
• How can I answer those concerns?

11. What if one of the parties does not attend?

If the claimant does not attend the mediation session, the case may be dismissed. If the defendant does not attend the mediation session, the claimant can ask for a default judgment.

To obtain a dismissal or default judgment, a verification of default form (SCR Form 31) must be completed by the mediator and given to the parties attending. Any party may file the verification of default at the registry. If neither party attends the mediation session, the registrar will make an order dismissing each disputed claim.

12. What happens if we reach an agreement through mediation?

If you reach agreement on some or all of the issues in dispute, the mediator will file a result of mediation form (SCR Form 24) at the registry. You will also prepare and sign a mediation agreement, which may be filed at the registry and enforced through the court.

13. What happens if only some issues are settled?

If there is no resolution or only some issues are resolved in the mediation session, you will receive a notice to attend a settlement conference, where a judge will help you prepare your case for trial.

14. Will the judge be told what happened at the mediation?

No. The judge is told only what issues were settled at the mediation session, but nothing about what happened or what was said.

15. If the dispute is not settled, doesn’t mediation just add more time to my court case?

Even if mediation does not resolve your case, it’s unlikely that it will be a wasted effort. If you do have a trial, it may be shorter and easier than if you hadn’t tried mediation first. Your settlement conference to prepare for trial will be shorter. See small claims court guide #6: Getting Ready for Court.