BarTalk February 2001
Volume 13, Number 1

Expansion of notice as of February 15

Under the banner of “saving time and money”, Attorney General Graeme Bowbrick has introduced an expansion of Notice to Mediate to civil litigation in the Supreme Court of BC, not including family law cases or actions involving compensation for physical or sexual abuse. The expansion is in effect as of February 15, 2001.

The Notice to Mediate process allows any party to a Supreme Court action to make an assessment that mediation would be productive, and then to require the other parties to attend a mediation session. It does not require parties to settle their dispute in mediation; parties can still go to trial if mediation fails. There is also a provision to allow for an application for exemption from the requirement to attend.

While the majority of those involved in the justice system are supportive of more options for resolving disputes, there are some mixed feelings among the Bench and Bar about the expansion of the notice to mediate process. However, as Chief Justice Donald Brenner notes, “The expansion really is reflective of the changing culture, which is seeing more and more cases being resolved by using methods other than formal adjudication.”

Notice to Mediate has been in effect in motor vehicle cases since 1998, and has been used in 3,000 actions with approximately 72 per cent of those cases being resolved. An additional 10 per cent of cases were resolved after notice was served and before the mediation session began. Notice to Mediate was expanded to include residential construction cases in 1999.

The provisions were introduced and expanded only after extensive consultation with the Bar and were supported by the BC Supreme Court’s Litigation Management Committee, comprised of Supreme Court judges and members of the Bar and public.

“We have completed a thorough consultation with the Bar, and have found a high level of satisfaction with the notice in personal injury and residential construction disputes, and considerable enthusiasm for extending it to a broader range of cases,” says Jerry McHale, QC, Director of the Alternate Dispute Resolution Office. “The Bar is increasingly sophisticated in its understanding of mediation. I think it will put the expanded notice to good use.”

Kelly Doyle, Secretary of the CBABC Alternate Dispute Resolution-Vancouver Section is enthusiastic about the expansion of mediation as an option for lawyers in their role as problem-solvers and resolution achievers. “From the perspective of those lawyers who act as lawyer mediators, this is an opportunity to expand their practice,” says Mr. Doyle. “From the perspective of lawyers as counsel, it represents an invitation to consider the appropriateness of using mediation in a broad range of civil disputes, and initiate a mediation when it appears that the circumstances are supportive.”

“By and large, notice to mediate is a message to counsel generally to consider all the alternatives available to their client, and to apply them in their clients’ interest,” says Mr. Doyle.

This article was published in the February 2001 issue of BarTalk and is subject to the copyright by the British Columbia Branch of the Canadian Bar Association, 2005, all rights reserved.