Difference between revisions of "Small Claims Mediation (20:X)"

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{{REVIEWED LSLAP | date= June 24, 2023}}
{{LSLAP Manual TOC|expanded = smallclaims}}
{{LSLAP Manual TOC|expanded = smallclaims}}


There  are  three  types  of  mediation under the  Small  Claims  court  rules.   Parties are free to mediate  on their own. See [[Small Claims Forms (20:III)#D. Alternative Dispute Resolution | Section III. D.: Alternative Dispute Resolution]].  
Mediation is available through the courts for claims between $10,000 and $35,000. Rule 7.2, which mandated mediation for certain claims under $10,000, was repealed effective January 1st, 2019. Parties are also free to meditate on their own. See [[Choosing_the_Proper_Forum_for_Small_Claims_(20:IV)|Section IV.D.: Alternative Dispute Resolution]].


== A. Claims of $1 0,000 or less - Rule 7.2 ==
== A. Claims Between $10,000 and $35,000 – Rule 7.3 ==


There is no cost to mediate under this rule unless a party requires an interpreter.Rule 7.2 mediations operate in four of the registries, namely: Surrey, Victoria, Nanaimo, and North Vancouver.  
This rule applies to all registries except the Vancouver (Robson Square) court registry. See [[Choosing_the_Proper_Forum_for_Small_Claims_(20:IV)|Section IV.D.: Alternative Dispute Resolution]].  


Rule 7.2 applies195 to all claims of $10,000 or less:
Any party to a proceeding where the amount of a claim, counterclaim, or third-party notice exceeds $10,000 may initiate mediation by filing a Notice to Mediate (Form 29) and serving it on every other party to the proceeding (''SCR'', Rules 7.3(2), (3), and (5)). If mediation has been scheduled all parties must select a mediator, attend the mediation, and agree on the amount that each party will pay towards the costs of mediation (''SCR'', Rules 7.3(9)-(10), (17)-(23), and (33)-(36)). By default, the parties will split the cost (''SCR'', Rule 7.3(35)(b)(i)). If the parties cannot agree on a mediator, the BC Mediator Roster Society may be requested to appoint one (''SCR'', Rule 7.3(10)).
*that involve a claim relating to the construction, renovation, or improvement of a building;
*that are one of the first 10 to 16 cases in which replies are filed in the month (number varies by registry—see Small Claims Rules Schedule D for specific information on each registry);
*where the parties consent and a judge refers to mediation; and
*where, prior to the notice of settlement conference being mailed, a party completes and files Form 21.  


Rule  7.2  does  not  apply  to claims  arising  from  a motor vehicle  accident  where  only '''liability'''  for property damage is disputed or where there is a claim for personal injury196.  This rule also does not apply where a party is a person under disability.  
Parties must attend the mediation session in person unless an application is filed for adjournment (''SCR'', Rule 7.3(30)), for a teleconference (Rule 7.3(25)), or for an exemption (Rule 7.3(28)). If a party fails to attend as required, the mediator will fill out a verification of default (Form 31) and provide it to the party in attendance (''SCR'', Rule 7.3(37). After filing Form 31, the party in attendance can file a request for judgment or dismissal (Form 23) which dismisses the claim if the party not attending is the claimant or gives a default order if the party not attending is the defendant (''SCR'', Rules 7.3(38)-(41)).


Parties  must  attend  the  mediation  session in  person  unless  an  application  is  filed  for an adjournment197, a teleconference198, or an exemption199. Any party served with a notice of mediation session may be accompanied by a lawyer or articled student200.  If a party fails to attend the mediation session,  the  party  in  attendance  will  receive  a  verification  of  non-attendance  (Form  22)  that  can  be filed with the Registrar201. After filing Form 22, the party in attendance can file a request for judgment or dismissal (Form 23), which dismisses the claim if the party not attending is the claimant or gives a default order if the party not attending is the defendant202.
== B. Preparing for Mediation ==


== B. Claims Exceeding $10,000 – Rule 7.3 ==
Preparation is essential in order to achieve the most from mediation. Each party should provide copies of relevant documents to the other party. Parties have the ability to create their own resolution and should consider creative settlement options. Mediation is not a forum to assess blame or resolve legal questions; it is designed to end the dispute in a manner that satisfactorily addresses the interests, legal and otherwise, of each party. It is important to listen to the other party expressing their interests and allow the mediator to help the parties resolve the dispute.


This  rule  applies  to  all  registries  except  the  Vancouver  (Robson  Square)  court  registry.  Parties pursuing mediation under Rule 7.3 should consider mediating through the Conflict Resolution Clinic (CoRe) – See [[Small Claims Forms (20:III)#D. Alternative Dispute Resolution | Section III. D.: Alternative Dispute Resolution]].  
== C. Procedure ==


Any  party  to  a proceeding  where  the amount  of  a claim, counterclaim,  or  third  party  notice  exceeds $10,000 '''may''' initiate mediation by filing a Notice to Mediate (Form 29) and serving it on every other party to the proceeding203. If mediation has been scheduled all parties must select a mediator, attend the mediation, and agree on the amount that each party will pay towards the costs of mediation204; by default,  the  parties  will  split  the  cost205.  If  the  parties  cannot  agree  on  a  mediator,  the BC Mediator Roster Society may be requested to appoint one206.  
Mediation is a flexible process that allows the mediator to help the parties achieve a settlement. A mediator is not necessarily a lawyer but is a skilled, experienced professional. Although mediation sessions can vary with respect to the process, there are generally some standard steps that are followed.


Parties must attend the mediation session in person unless an application is filed for adjournment207, for a teleconference208, or for an exemption209. If a party fails to attend as required, the mediator will fill  out  a verification  of  default  (Form  31)  and provide  it  to the  party  in attendance210.  After  filing Form  31,  the  party  in  attendance  can  file  a  request  for  judgment  or  dismissal  (Form  23) which dismisses the claim if the party not attending is the claimant or gives a default order if the party not attending is the defendant211.  
All parties and representatives will be seated at a table with one to three mediators. The mediators will describe the mediation process, and ask each person attending to sign an Agreement to Mediate. This must be signed in order for the mediation process to proceed. The Agreement to Mediate form includes a confidentiality clause (any information disclosed in the session that is not otherwise discoverable is inadmissible and mediators cannot be called to testify in later proceedings) and ensures that the parties present have full authority to settle the case.


== C. Mediation in Vancouver (Robson Square) – Rule 7.4 ==
After signing the Agreement to Mediate, both parties will have a short time to tell their story. The mediator will summarize the key points in dispute. Once the main issues are identified, the mediator will look for common interests in an attempt to assist parties to resolve the dispute. The mediator will assist the parties to negotiate and reach an amicable resolution. During the process, it is not uncommon for a mediator to have a private conference with each party.


Claims  exceeding  $5,000  or  personal  injury  claims  in  any  amount  are  subject  to  mandatory mediation212. There are a few exceptions213 including where the claim is for a financial debt and Rule 9.2 applies. The Registrar will serve the parties with a Notice of Mediation (Form 27) informing them of the date, time, and place of the mediation session214.  
If the parties agree to a resolution, the mediator will draft an Agreement setting out the terms of the resolution. It may include monetary and non-monetary terms and may have a non-compliance clause setting out consequences for failing to fulfill the obligations set out in the Agreement. If there is no non-compliance clause, the default amount will be the original amount claimed in the action. The mediator will file the agreement in the Small Claims Court registry after each party signs the agreement.


If the claim is for damages for personal injuries, the claimant must file and serve the other parties with a  certificate  of  readiness  (Form  7)  and  required  documents215.  The  claimant  should  review  the applicable rules for the proper timeline and how to obtain extensions.


Each  party  must  attend  the  mediation  session  in  person  unless  an  application  is  filed  for adjournment216, for a teleconference217, or unless an exemption is granted218. If a party fails to attend the mediation session, the party in attendance will receive a verification of non-attendance (Form 22) that can be filed with the Registrar219. After filing Form 22, the party in attendance can file a request for  judgment  or  dismissal  (Form  23),  which  dismisses  the  claim  if  the  party  not  attending  is  the claimant or gives a default order if the party not attending is the defendant220.
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== D. Preparing for Mediation ==
 
Preparation  is  essential  in  order  to  achieve  the  most from  mediation.  Each  party  should  provide copies of relevant documents to the other party. Parties have the ability to create their own resolution and should consider creative settlement options. Mediation is not a forum to assess blame or resolve legal questions; it is designed to end the dispute in a manner that satisfactorily addresses the interests, legal  and  otherwise,  of  each  party.  It  is  important  to  listen  to  the  other  party  expressing  his  or  her interests and allow the mediator to help the parties resolve the dispute.
 
== E. Procedure ==
 
Mediation  is  a  flexible  process  that  allows  the  mediator to  help  the  parties  achieve  a  settlement.  A mediator  is  not  necessarily  a  lawyer,  but  is  a  skilled,  experienced  professional.  Although  mediation sessions can vary with respect to process, there are generally some standard steps that are followed.
 
All parties and representatives will be seated at a table with one to three mediators. The mediators will describe the mediation process, and ask each person attending to sign an Agreement to Mediate. This must  be  signed  in  order  for  the  mediation  process  to  proceed.  The  Agreement  to  Mediate  form includes  a  confidentiality  clause  (any  information  disclosed  in  the  session  that  is  not  otherwise discoverable  is  inadmissible  and  mediators  cannot  be  called to  testify  in  later  proceedings),  and ensures that the parties present have full authority to settle the case.
 
After  signing  the  Agreement  to  Mediate,  both  parties will  have  a  short  time  to  tell  their  story.  The mediator will summarize the key points in dispute. Once the main issues are identified, the mediator will look for common interests in an attempt to assist parties to resolve the dispute. The mediator will assist  the  parties  to  negotiate  and  reach  an  amicable  resolution.  During  the  process,  it  is  not uncommon for a mediator to have a private conference with each party.
 
If the parties agree to a resolution, the mediator will draft an Agreement setting out  the terms of the resolution. It may include monetary and non-monetary terms, and may have a non-compliance clause setting  out  consequences for  failing  to fulfil  the  obligations  set  out  in  the  Agreement.  If  there is  no non-compliance  clause,  the  default  amount  will  be  the  original  amount  claimed  in  the  action.  The mediator  will  file  the  agreement  in  the  Small  Claims  Court  registry  after  each  party  signs  the agreement.

Latest revision as of 18:41, 19 September 2023

This information applies to British Columbia, Canada. Last reviewed for legal accuracy by the Law Students' Legal Advice Program on June 24, 2023.
LSLAP Manual
LSLAP Manual
This page is from the
Law Students' Legal
Advice Program Manual.
See the full contents.
LSLAP Manual
Introduction
Chapters
20. Small Claims and the CRT
 · I. Introduction

 · II. Governing Legislation and Resources
 · III. Do You Have a Claim?
 · IV. Choosing the Proper Forum
 · V. Starting a Claim
 · VI. Responding to a Claim
 · VII. Default Order
 · VIII. How a Claim Proceeds
 · IX. Pre-Trial
 · X. Mediation
 · XI. Settlement Conferences
 · XII. Trial/Pre-Trial Conferences
 · XIII. Trial Preparation
 · XIV. Trials
 · XV. Costs and Penalties
 · XVI. Appeals
 · XVII. Enforcement of a Judgement
 · Appendix A: Registries
 · Appendix B: Demand Letter
 · Appendix C: Notice of Claim
 · Appendix D: Reply to Claim
 · Appendix E: Glossary
 · Appendix F: Limitation Periods
 · Appendix G: Causes of Action
 · Appendix H: Court Fees
 · Appendix I: Tribunal Fees
 · Appendix J: Settlement Conference
 · Appendix K: Payment Hearing
 · Appendix L: Appeal

 · Appendix M: LSLAP Policy
v • d • e



Mediation is available through the courts for claims between $10,000 and $35,000. Rule 7.2, which mandated mediation for certain claims under $10,000, was repealed effective January 1st, 2019. Parties are also free to meditate on their own. See Section IV.D.: Alternative Dispute Resolution.

A. Claims Between $10,000 and $35,000 – Rule 7.3

This rule applies to all registries except the Vancouver (Robson Square) court registry. See Section IV.D.: Alternative Dispute Resolution.

Any party to a proceeding where the amount of a claim, counterclaim, or third-party notice exceeds $10,000 may initiate mediation by filing a Notice to Mediate (Form 29) and serving it on every other party to the proceeding (SCR, Rules 7.3(2), (3), and (5)). If mediation has been scheduled all parties must select a mediator, attend the mediation, and agree on the amount that each party will pay towards the costs of mediation (SCR, Rules 7.3(9)-(10), (17)-(23), and (33)-(36)). By default, the parties will split the cost (SCR, Rule 7.3(35)(b)(i)). If the parties cannot agree on a mediator, the BC Mediator Roster Society may be requested to appoint one (SCR, Rule 7.3(10)).

Parties must attend the mediation session in person unless an application is filed for adjournment (SCR, Rule 7.3(30)), for a teleconference (Rule 7.3(25)), or for an exemption (Rule 7.3(28)). If a party fails to attend as required, the mediator will fill out a verification of default (Form 31) and provide it to the party in attendance (SCR, Rule 7.3(37). After filing Form 31, the party in attendance can file a request for judgment or dismissal (Form 23) which dismisses the claim if the party not attending is the claimant or gives a default order if the party not attending is the defendant (SCR, Rules 7.3(38)-(41)).

B. Preparing for Mediation

Preparation is essential in order to achieve the most from mediation. Each party should provide copies of relevant documents to the other party. Parties have the ability to create their own resolution and should consider creative settlement options. Mediation is not a forum to assess blame or resolve legal questions; it is designed to end the dispute in a manner that satisfactorily addresses the interests, legal and otherwise, of each party. It is important to listen to the other party expressing their interests and allow the mediator to help the parties resolve the dispute.

C. Procedure

Mediation is a flexible process that allows the mediator to help the parties achieve a settlement. A mediator is not necessarily a lawyer but is a skilled, experienced professional. Although mediation sessions can vary with respect to the process, there are generally some standard steps that are followed.

All parties and representatives will be seated at a table with one to three mediators. The mediators will describe the mediation process, and ask each person attending to sign an Agreement to Mediate. This must be signed in order for the mediation process to proceed. The Agreement to Mediate form includes a confidentiality clause (any information disclosed in the session that is not otherwise discoverable is inadmissible and mediators cannot be called to testify in later proceedings) and ensures that the parties present have full authority to settle the case.

After signing the Agreement to Mediate, both parties will have a short time to tell their story. The mediator will summarize the key points in dispute. Once the main issues are identified, the mediator will look for common interests in an attempt to assist parties to resolve the dispute. The mediator will assist the parties to negotiate and reach an amicable resolution. During the process, it is not uncommon for a mediator to have a private conference with each party.

If the parties agree to a resolution, the mediator will draft an Agreement setting out the terms of the resolution. It may include monetary and non-monetary terms and may have a non-compliance clause setting out consequences for failing to fulfill the obligations set out in the Agreement. If there is no non-compliance clause, the default amount will be the original amount claimed in the action. The mediator will file the agreement in the Small Claims Court registry after each party signs the agreement.


v • d • e
 
Introduction
 
Chapters 1-7
Criminal Law  · Youth Justice  · Family Law  · Victims  · Public Complaints · Human Rights  · Workers Compensation
Chapter One:
Criminal Law
Chapter Two:
Youth Justice
Chapter Three:
Family Law
Chapter Four:
Victims
Chapter Five:
Public Complaints
Chapter Six:
Human Rights
Chapter Seven:
Workers' Compensation
I. Introduction · II. Governing Legislation, Policy & Guidelines · III. Introduction to Compensation Claims for Injured Workers · IV. LSLAP's Role at the Initial Decision Level · V. Limitation Periods and Timing of Decisions · VI. Making a Claim · VII. The Claim Acceptance Process · VIII. Worker Status · IX. Disability and Causation · X. Time Limits and Procedures · XI. Claim Benefits · XII. Appeals · XIII. Health and Safety Regulations in the Workplace · XIV. Assessments of Employers · XV. The WCB Fair Practices Officer · Appendix A: Abbreviations · Appendix B: List of Cases · Appendix C: Referrals · Appendix D: Resources · Appendix E: Claims Process · Appendix F: Checklist for Interviews · Appendix G: Checklist for Appeals · Appendix H: Sample Authorization Form
 
Chapters 8-14
Employment Insurance  · Employment Law  · Creditors and Debtors  · Consumer Protection  · Auto Insurance (ICBC)  · Motor Vehicle Law  · Mental Health Law
Chapter Eight:
Employment Insurance
Chapter Nine:
Employment Law
Chapter Ten:
Creditors' Remedies and Debtors' Assistance
Chapter Eleven:
Consumer Protection
Chapter Twelve:
Auto Insurance (ICBC)
Chapter Thirteen:
Motor Vehicle Law
Chapter Fourteen:
Mental Health Law
 
Chapters 15-23
Adult Guardianship and Substitute Decision-Making · Wills and Estates  · Citizenship  · Immigration  · Landlord and Tenant Rights  · Small Claims  · Welfare Law  · Strata Law  · Referrals
Chapter Fifteen:
Adult Guardianship and Substitute Decision-Making
Chapter Sixteen:
Wills and Estate Administration
Chapter Seventeen:
Citizenship
Chapter Eighteen:
Immigration Law
Chapter Nineteen:
Landlord and Tenant Law
Chapter Twenty:
Small Claims and the CRT
I. Introduction · II. Governing Legislation and Resources · III. Do You Have a Claim? · IV. Choosing the Proper Forum · V. Starting a Claim · VI. Responding to a Claim · VII. Default Order · VIII. How a Claim Proceeds · IX. Pre-Trial · X. Mediation · XI. Settlement Conferences · XII. Trial/Pre-Trial Conferences · XIII. Trial Preparation · XIV. Trials · XV. Costs and Penalties · XVI. Appeals · XVII. Enforcement of a Judgement · Appendix A: Registries · Appendix B: Demand Letter · Appendix C: Notice of Claim · Appendix D: Reply to Claim · Appendix E: Glossary · Appendix F: Limitation Periods · Appendix G: Causes of Action · Appendix H: Court Fees · Appendix I: Tribunal Fees · Appendix J: Settlement Conference · Appendix K: Payment Hearing · Appendix L: Appeal · Appendix M: LSLAP File Administration Policy
Chapter Twenty One:
Welfare Law
Chapter Twenty Two:
Strata Law
Chapter Twenty Three:
Referrals
© Copyright 2023, The Greater Vancouver Law Students' Legal Advice Society.


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