by M. Jerry McHale, QC

Three forms of mediation are used in British Columbia today: voluntary, quasi-mandatory, and fully mandatory. Voluntary mediation began to be used for family law disputes about 25 years ago. Use soon spread to personal injury and general commercial claims disputes. No statistics are available, but it is clear that the use of voluntary mediation in B.C. to resolve civil and family disputes is now pervasive.

Child protection issues are frequently mediated under a voluntary scheme that has been in operation for some years. Mediation is supported by a Ministry for Child and Family Development policy directing social workers to make collaborative processes the default option for resolving child welfare disputes. Use of mediation has climbed dramatically over the last three years. Settlement rates of all issues exceed 70 per cent.

British Columbia’s first experience with quasi-mandatory mediation was with the Notice to Mediate (Notice). First introduced for motor vehicle personal injury cases in the Supreme Court in 1998, this “party-driven” process enables any party to an action to require other parties to attend a single mediation session. The process is unique to B.C., and is now used in more than 4000 personal injury cases annually. While it requires only attendance not settlement, such cases usually do settle. Settlement rates at mediation have held steady over 10 years at approximately 75 per cent. In 1999 the Notice was made available for residential construction cases in the Supreme Court, and in 2001 it was expanded to a wide range of civil, non-family, cases. As a pilot project, the Notice has recently been made available for family law cases in the Victoria, Duncan and Nanaimo Supreme Court registries.

In fully mandatory mediation schemes all parties are compelled, usually by rule or regulation, to attend a single mediation session. Research has shown that parties who are compelled to mediate will settle at approximately the same rate as parties who mediate voluntarily. As well, process satisfaction levels are typically very high regardless of whether the mediation was voluntary or compelled.

As part of the justice reform initiative developed jointly with the Provincial Court, the provincial government is currently piloting mandatory mediation for claims in the Robson Square Small Claims Court registry. In this pilot, all cases between $5,000 and $25,000, and all personal injury cases, are referred to a two-hour mediation session. The mediators are assigned by the B.C. Dispute Resolution Practicum Society at no-cost to the parties.

This pilot builds on the success of the Court Mediation Program (CMP) which has operated in five Small Claims registries for several years. In addition to providing voluntary mediation services, a limited number of cases each month are referred to mandatory mediation. Settlement rates in the CMP are approximately 60 per cent, with an overall program satisfaction rate reported by participants of 4.27/5.

Provincial Court rules provide for the mediation by judges of the court of matters in dispute in small claims, child welfare, and family law cases. In small claims and child welfare cases parties are required by the rules to attend to address unresolved issues. While such conferences are not mandatory for family cases they are directed by the court in a majority of unresolved cases.

M. Jerry McHale, QC, Assistant Deputy Minister, Ministry of Attorney General

This article was published in the June 2008 issue of BarTalk. © 2008 The Canadian Bar Association. All rights reserved.