Renouf Mediation

Renouf Mediation

#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.

Blog

14 Sep 2020

New Legal Year: new mediation options

Five cases supporting mediation and anticipated changes to CPR mean that there are options for parties that cannot be ignored.

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