BarTalk June 2003
Volume 15, Number 3

by Erin Shaw

The Court Mediation Program (CMP) was established in 1998 to enlarge the pool of qualified mediators in B.C., enhance access to justice, and relieve backlog pressure on the court. Until now, the CMP operated in three registries: Surrey; Robson Square; and Nanaimo; on the authority of practice directions issued by the Office of the Chief Judge of the Provincial Court. On April 28, 2003, a new Small Claims Rule replaced the practice direction.

Referrals
Under the Practice Direction that preceded the Rule, referrals to the CMP came from:

1. voluntary election by the parties;

2. referral by a judge at a settlement conference;

3. mandatory referral of all construction cases; and

4. mandatory referral by date of reply.

Referrals to mediation differ by each registry but there is an overall referral rate of 25 per cent of the total caseload from the CMP registries.

Outcomes
Data gathered shows an overall settlement rate of 60 per cent. Average satisfaction with the conduct of the mediation is 4.32 on a 5 point scale and 91 per cent of participants indicate they would use mediation again.

Small Claims Rule 7.2
The new rule reflects many aspects of the practice direction, in place since the inception of the Program. However, there are some significant additions to the rule. These include provisions setting out the consequences of not attending a mediation, and enforcement and confidentiality provisions.

The Rule applies to cases in designated mediation registries which, as of April 28, 2003, are Surrey, Robson Square, Nanaimo and North Vancouver. There are plans to expand the Program to Victoria later in the year. Within the current registries the mediation rule applies to the following disputed claims:

• Claims that fall within a class of cases described in Schedule D – Schedule D currently includes construction cases and a specified number of cases from each registry by date of reply;

• Claims referred to mediation from a settlement conference, with the consent of the parties; and

• Claims for which a Notice to Mediate has been filed with the registry.

Schedule E describes classes of cases to which the rule does not apply and includes claims arising from a motor vehicle accident.

When a case is referred to mediation, the mediation coordinator sends a Notice of Mediation Session to all parties. Parties may apply to a judge for an exemption from the requirement to attend the mediation. The consequences of not attending a mediation session are similar to those for not attending a settlement conference.

When parties reach full or partial agreement, they must file an agreement form. Agreements are drafted by the mediators and signed by the parties at the mediation. If the parties do not reach agreement on all issues, the registry sets a date for a settlement conference. The Rule includes enforcement mechanisms.

Erin Shaw is the Acting Director of the Dispute Resolution Office in the Ministry of Attorney General.

Mediator Training
The Court Mediation Program has two components: a Practicum and a Roster. In the Practicum, mediators with formal training, but little experience, are given the opportunity to mediate 10 small claims cases under the supervision of highly experienced mediator mentors. Graduates of the Practicum can apply to become Provincial Court (Civil) Mediators (PCCMs); if accepted, these mediators conduct Small Claims mediations for a nominal fee.

This article was published in the June 2003 issue of BarTalk and is subject to the copyright by the British Columbia Branch of the Canadian Bar Association, 2005, all rights reserved.