Creative Mediation System in British Columbia: A Model For Us All

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Vancouver Water Taxis (photo by Marilyn Swanson)

By:  Donald L. Swanson

“We have been much struck by the system operated in British Columbia whereby a party can issue a notice to their opponent in a specified form requiring mediation.”

“[T]he establishment” of such a system “has led to the growth of informally agreed mediation as a norm” with the formal procedure “only being invoked rarely.”

“This is exactly the kind of outcome” we “would welcome and would see as beneficial for civil justice” in England and Wales.

The foregoing statements are from an October 2017 “Interim Report” of a “Working Group” evaluating mediation processes in England and Wales.

The British Columbia Mediation “Notice” System

The British Columbia mediation “Notice” system works like this (quotes are from governing regulations):

–A party in a lawsuit “may initiate mediation” by “serving a Notice to Mediate” on “every other party” in the lawsuit, at any time between these two dates, (i) 60 days after an initial filing, and (ii) “no later than 120 days before the date of trial”;

–A mediator is then appointed by the parties;

–A “pre-mediation conference” must be held, followed by a formal mediation session, with representatives of all parties attending both events (attendance by telephone is an option);

–Exemptions from the mediation process include, (i) a mediation of the dispute has already occurred, (ii) the parties agree in writing that mediation should not occur, and (iii) the court believes “it is materially impracticable or unfair” to require a party to attend;

–Mediation statements from the parties must be delivered to the mediator and distributed to all participants; and

–The Court may impose sanctions (including staying or dismissing the lawsuit or assessing costs) when a party fails to follow the mediation requirements.

A Recent Case at the Supreme Court of British Columbia

The Supreme Court of British Columbia issued an “Oral Reasons for Judgment” in a case captioned, Matsqui First Nation v. Canada (Attorney General), 2015 BCSC 1409. In this case “The Crown” seeks “an order that it is exempt from attending” a mediation session because, it argues, the “unique” circumstances of the case render mediation “materially impracticable.”

Analysis

The Supreme Court offers the following analysis:

–Applications for exemption from mediation requirements “are rare”: these mediation regulations began in 2001, and since then “there appears to have been only one other case in this province” where a party sought an exemption from the mediation requirements.

–In this lawsuit, Plaintiff is alleging that Canada’s Department of Fisheries and Oceans is infringing on the Matsqui “domestic salmon fishing right.” The Crown denies that such a right exists and asserts a highly complex balancing of “international obligations, environmental and fish conservation concerns, aboriginal and treaty right claims,” etc.

–On May 26, 2015, Plaintiff served the Crown with a Notice to Mediate, triggering a mandatory mediation process.

–The Crown sought an exemption from mediation for a variety of reasons, including the need for a “judicial precedent in this test case,” the lack of legal “mandate” for settling such a case, the “highly improbable” odds for mediated settlement, etc.

–“British Columbia appears to be unique among the provinces” in its “material impracticability or unfairness” standard for exemption from mediation.

–A review of prior cases rejecting exemption applications (based on such grounds as “challenging international logistics, deep pessimism as to outcome, and outright hostility between the parties”) finds these observations:

“settlement rates in all forms of mediation, including mandatory mediation, are high”;

“Pessimism and hostility on the part of parties compelled to attend a mediation are often predictable” and, “in and of themselves,” do not “justify exemption from the mandatory mediation process”;

“A belief that there is little room for flexibility and no major concessions will be made does not act to render the mediation process futile”;

Nor is the mediation effort “futile” when “the parties are unable to reach a settlement.”  That’s because “multiple other benefits may be obtained,” such as narrowing and refining the issues, planning the next court steps, and a shortened trial time.

–Mr. Justice Kent, who authored the Matsqui First Nation opinion, has extensive mediation experience: he’s participated “in dozens of mediations in more than 30 years of practice” and endorses the observations from other courts noted above.

Benefits of Mediation

–Mr. Justice Kent concludes the Matsqui First Nation opinion with the following points;

“The beauty of mediation lies in its confidentiality and flexibility”;

“In this case, the Matsqui seek declaratory relief respecting a perceived aboriginal right protected and preserved by the Constitution,” which “is not the sort of remedy that is readily available in a mediation”;

“They undoubtedly know this” yet they “initiated the mediation nonetheless”;

“Presumably they believe there is some basis for settling the claim”;

“If nothing else, perhaps some accommodations and efficiencies may be reached” on trial matters;

“At best, some sort of creative resolution in principle may emerge”; and

“I am not satisfied that a mediation in this case is either impracticable or unfair. The application is dismissed.”

Conclusion

It appears that British Columbia is onto something: a creative mediation process that works. It starts as a formal, mandatory process but, by all accounts, has progressed into a voluntary process that is commonly and effectively utilized by many litigants.  And, the process has gained the confidence and support of the judiciary.

Kudos to them!!

** If you find this article of value, please feel free to share. If you’d like to discuss, let me know.

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