#N2M 2020 - the Notice to Mediate

The ADR Report of the Civil Justice Council published in December made a number of recommendations to support ADR in civil process. The authors of the report were mindful of the pressure on the Courts and reluctant to trigger a wave of costly applications to mediate. Having considered the mediation process in a number of jurisdictions they suggested that an alternative might be to introduce a Notice to Mediate procedure modelled on the British Columbia Notice to Mediate (General) Regulation. Thus any application would be to dis-apply the process and the expectation would be that fewer applications would result where there is a general judicial expectation to mediate. (See earlier blogs.)

A summary of the process is below

• Any party may file a Notice to Mediate in prescribed form
• Only one Notice to Mediate per case
• Filing of Notice – not earlier than 60 days after defence and no later than 120 days before Trial
• Parties to agree a Mediator within 14/21 days (depending on number of parties)
• In event of disagreement any party may apply to a “roster organisation” to appoint the mediator
• Mediation to be held within 60 days of appointment of mediator but not later than 7 days before trial
• Pre-mediation conference is required where matter is complex (as determined by the appointed mediator)
• Statement of Facts to be delivered by parties 14 days before mediation
• Mediation concludes upon agreement or is terminated by the mediator
• Mediator to deliver a Certificate of Completed Mediation

There are additional provisions relating for instance to the matters the mediator must “endeavour to have the participants consider” at a pre-mediation conference and to the mediators’ fee. Steps and deadlines can be varied by the Court or with agreement of all of the parties. Importantly there is also a regulatory acknowledgement that information, offers and documentation made in anticipation of, during or in connection with a mediation sessions is confidential.

The CJC is not pushing for an immediate introduction of a Notice to Mediate. It considers that parties would want to establish confidence in a “roster organisation” that would appoint a mediator.

Sanctions (in British Columbia) include the power to grant a stay, to order that a mediation occur, to dismiss or strike out the action and to make any appropriate costs order.

This is therefore a “notice to” that has real teeth. One doubts that a power to strike out and enter judgment for failure to mediate might be contemplated in this jurisdiction given concerns about a possible violation of Article 6 of the ECHR.

However, whilst it seems that the formal adoption of the Notice to Mediate within the Civil Procedure Rules might be a medium term outcome the steps in the process might be adopted by parties in this jurisdiction where they are keen to press on with ADR processes such as mediation.