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INSTRUCTION GUIDE FOR MEDIATORS: RULE 7.3 - NOTICE TO MEDIATE FOR CLAIMS BETWEEN $10 000 AND $25 000

This instruction guide is intended to assist mediators who have been appointed to mediate a claim under Small Claims Rule 7.3 - Mediation for Claims Between $10 000 and $25 000.

The guide makes frequent reference to the subrules in Rule 7.3. We suggest that, for the purpose of studying this guide, you refer directly to a copy of Rule 7.3. A printable version of the Rule is posted at: http://www.ag.gov.bc.ca/dro/regulations-rules/index.htm. The guide also makes frequent reference to the forms which must be used under Rule 7.3. All of the forms are posted at: http://www.ag.gov.bc.ca/courts/forms/forms_smcl.htm.

You may wish to read the guide in sequence, or use the menu below to jump to the particular pages in which you are most interested.

This guide has been produced with funding from the Ministry of Attorney General. Questions and comments regarding information in this guide should be forwarded to the Dispute Resolution Office, Ministry of Attorney General: ag.dro.victoria@gov.bc.ca


CONTENTS:

Definitions
Common Acronyms and Abbreviations
Notice to Mediate for Claims Between $10 000 and $25 000
Appointment of Mediator
Mediator's Role
Scheduling the Mediation Session
Teleconferences
Fees
Conducting the Mediation
Non-attendance
Agreement to Mediate
Confidentiality
Writing the Agreement
Documenting the Mediation
Samples of Completed Forms (alphabetical order)
Sample Small Claims Action
    Mediation Scenarios
        Failure to Sign Fee Declaration (Form 30)
        Failure of One Party to Attend the Mediation Session
        Failure of All Parties to Attend the Mediation Session
        Failure to Sign the Agreement to Mediate
        Mediation Session Held by Consent Teleconference
        Mediation Session Held - No Mediation Agreement Reached
        Mediation Session Held - Mediation Agreement Reached on Some Issues
        Mediation Session Held - Mediation Agreement Reached on All Issues



Definitions top

Adjournment: to defer; postpone
Party: a person or company named in the proceeding
Pleadings: court documents including the Notice of Claim, Reply, Third Party Notice, etc.
Support Person: a person who is not named in the action who attends to provide comfort and advice to a party to the action
Style of Cause: the heading appearing on the top of court documents that names the parties


Common Acronyms and Abbreviations

adj: adjournment
aka: also known as
clt: claimant
coba: carrying on business as (name of company)
cs: court services
dba: doing business as
dft: defendant
fka: formerly known as
NOW: Notice of Withdrawal
oa: operating as
sc: small claims or settlement conference
ta: trading as
tp: third party
VOD: Verification of Default (Form 31)


Notice to Mediate for Claims Between $10 000 and $25 000 top

A party to a proceeding in the Small Claims Court may initiate mediation if a claim in the proceeding amounts to more than $10 000 and not more than $25 000, without taking into account interest or claim-related expenses. (subrule 2)

Any party to a proceeding may initiate mediation by filing a Notice to Mediate for Claims Between $10 000 and $25 000. Unless the court orders otherwise, a Notice to Mediate for Claims Between $10  000 and $25  000 must not be filed and delivered until a reply has been filed. (subrule 6)

If there are multiple parties, encourage the parties to file all replies before the mediation session is scheduled. This will ensure that you have essential contact information and that you will know as much as possible about the case before mediating. It is mandatory that all of the parties attend the mediation session. (subrule 17)

When a Notice to Mediate for Claims Between $10 000 and $25 000 has been filed, a matter will not be scheduled for settlement conference by the Small Claims Court Registry until the mediation process is concluded, and a Result of Mediation form has been filed by the mediator appointed by the parties.


Appointment of Mediator top

There are 2 ways a mediator can be appointed:
The parties must jointly appoint a mediator within 14 days of delivery of the Notice to Mediate for Claims Between $10 000 and $25 000. (subrule 9)

If the parties do not jointly appoint a mediator within the time required, then any party may apply to the for an appointment of a mediator. (subrule 10) The British Columbia Mediator Roster Society must select a mediator after taking into account:
  1. the need for the mediator to be neutral and independent,
  2. the qualifications of the mediator,
  3. the mediator's fees,
  4. the mediator's availability,
  5. the nature of the dispute, and
  6. any other consideration likely to result in the selection of an impartial, competent and effective mediator. (subrule 11)
The British Columbia Mediator Roster Society will select a mediator, and must notify the parties in writing of the selection. (subrule 12) Then the parties will be encouraged to contact the mediator. If the mediator has been appointed, and the parties have not contacted the mediator within 3 days, the mediator should contact the parties.

For more detailed information about the British Columbia Mediator Roster Society's appointment procedure, refer to: http://www.mediator-roster.bc.ca/aboutus_appointment_rule.html.

If the mediator selected is unable or unwilling to act as mediator, the mediator or any party may notify the British Columbia Mediator Roster Society of that inability or unwillingness and the British Columbia Mediator Roster Society must select a new mediator within 7 days. (subrule 14)

When a mediator is considering accepting an offer to appoint him/her, it is necessary to get the names of all parties and counsel who will be attending and to check for a conflict of interest. For more information, see the British Columbia Mediator Roster Society's Standards of Conduct, s.4.


Mediator's Role top

The appointed mediator must:
The mediator may conduct the mediation session at the location and in any manner he or she considers appropriate to assist the parties to reach a resolution that is fair, timely and cost-effective. (subrule 15)


Scheduling the Mediation Session top

When a mediator is scheduling the mediation session:
  • Verify that a Notice to Mediate for Claims Between $10 000 and $25 000 has been filed and delivered to all parties. Get a copy of the Notice to Mediate for Claims Between $10 000 and $25 000, the Notice of Claim and the Reply from the parties. Check that at least one of the claims in the proceeding amounts to more than $10 000 and not more than $25 000 without taking into account interest or claim-related expenses. If there are multiple defendants and multiple third parties, check that all Replies and Counterclaims have been filed, and that you have a copy of all the pleadings. If not all Replies and Counterclaims have been filed, it may be necessary to postpone the scheduling of the mediation session until all documents have been filed, and any has been heard where no Reply is filed.

  • Check with the parties that this claim does not fall under subrule 3, "Claims to which this rule does not apply". A party to a proceeding may not initiate mediation in that proceeding if the proceeding involves a party who has obtained a restraining order or peace bond against another party, or if the claimant, defendant and cause of action in the proceeding are the same parties and cause of action in a Supreme Court action. (subrules 3 and 4)

  • Establish who will attend the mediation session, and whether they will attend in person or by teleconference.

    All parties must attend the mediation session (subrule 17) unless:
    • the party is exempted from attending by order of the court (subrule 29), or
    • the proceeding is a motor vehicle action. (subrule 18) In a motor vehicle action, if a defendant or third party is insured, the insurer must attend on behalf of the defendant or third party.

    Check with the parties that no parties to the action have applied for exemption from mediation under subrule 28. A judge may order an exemption from mediation if all the parties have previously engaged in mediation of the matter in issue or may exempt one or more parties from the mediation if it is unfair or impractical to require them to attend mediation.

    If the party is not an individual, for example if the party is a corporation, the party may attend a mediation session by representative. The representative must be familiar with all facts relevant to the dispute and have full authority to settle, or have access at the earliest practicable opportunity to a person who has, or to a group of persons who collectively have, full authority to settle, on behalf of a party. (subrules 20 and 21)

    Some parties may wish to attend by teleconference. (subrules 24, 25 and 26)

    A person or representative who attends a mediation session may be accompanied by a lawyer or articled student. (subrule 22)

    Any other person may attend a mediation session if that attendance is permitted by the mediator and consented to by the parties. (subrule 23)

  • Get names, address and phone numbers of all persons attending the mediation session and check again for conflict of interest. For more information see the British Columbia Mediator Roster Society's Standards of Conduct, s.4.

  • Establish that the parties attending have authority to settle, inform them that they must bring all documents and reports that are relevant to the dispute to the mediation session. (subrule 19)

  • Negotiate fees and have the parties sign a Fee Declaration. (Fees)(subrule 33)

Setting the Date:
  • Select a date when all parties and attending persons are available within 6o days of your appointment and at least 7 days before the date set for a settlement conference. A mediation session must occur within 60 days after the appointment of the mediator, unless a later specified date is agreed upon by all parties and that agreement is confirmed by the mediator in writing, or is ordered by the court. If the mediator cannot get the parties to agree on a date, it may be necessary for one of the parties to make an application for a court order confirming a later specified date. (subrule 16)

  • Book a suitable location. A well-lit and airy room that is sufficiently large to accommodate all persons attending is necessary. Ensure that there is a large boardroom table with sufficient numbers of comfortable chairs available. It may be important to have a separate caucus room near the main room. Whiteboards and a telephone with teleconferencing capability may be required.

  • Adjourning and rescheduling may be necessary. All parties must consent if the date of the scheduled mediation session is to be changed. If consent of all parties is not obtained, it may be necessary for a party to make an Application to the Registrar under subrules 30, 31 and 32. Ensure that all of the attending persons are available on the selected new date, and that all persons attending agree to the new date. Do a final follow-up call to confirm the date on the day before the scheduled session.

Handling Questions Which Require Legal Advice:

It is often necessary to assist parties unrepresented by counsel when they ask questions requiring legal expertise by referring them to legal advice, or other sources for advice regarding what procedure would be advisable. Refer them to legal counsel, or other sources for information, such as the Law Students Legal Assistance Program, Lawyer Referral Service, the Small Claims Rules, or to the appropriate Small Claims Registry.


Tips to Expedite Scheduling of Mediation Sessions:
  • Wherever possible, utilize email. It is immensely helpful to have a written record of correspondence and you can communicate with everyone at the same time. If you expect parties to "reply to all", say so.

  • Gather a lot of available dates and then narrow the choices for the parties.

  • Always work with specific deadlines with exact dates and times when you expect a response. Avoid using words like: asap, immediately, right away, etc.

  • Always confirm dates with the day of the week and the day of the month. This will reduce miscommunications.

  • Use descriptive subject lines in emails (e.g., CONFIRMED: Mediation Date; or CANCELLED: Mediation Date; or NEW: Mediation Date; URGENT: Fee Declaration; etc.)

  • Consider the location of the parties. If they are attending by teleconference, is there a time zone difference? If they are attending in person, how far do they have to drive? An afternoon mediation session may be better than morning for example - especially where rush hour traffic is a concern. This could reduce the chance of tardiness by parties when arriving for the mediation.

  • Always request alternate numbers, email addresses and in particular cell phone numbers. People often will not provide their cell numbers unless they are specifically asked for them.

  • If you must rely on voicemail, leave detailed messages and state on the message the exact information you are looking for. Specifically state that they can leave these details on your voicemail. This is not an automatic response for people that do not use voicemail regularly and will save a lot of time playing telephone tag.

  • Consider developing a tracking sheet to log dates and times that calls were made and the expectations that were laid out in any messages left (deadlines, options, etc.).

Teleconferences top

One or more of the persons who are required or permitted to attend a mediation session may attend the mediation session by telephone if all of the other parties attending the mediation session consent. (subrule 24) A request to attend by teleconference may occur during the scheduling process, or as late as the date of the mediation session.

If consent is not obtained, a party may apply to the registrar to attend the mediation session by teleconference. The registrar may authorize one or more of the parties to attend the mediation session by telephone if the party does not reside or carry on business within a reasonable distance from the location where the mediation session is to be conducted, or exceptional circumstances exist. (subrules 25 and 26)

If a party has applied to the registrar for a teleconference and obtained an authorization, request a copy of the Application to the Registrar and the order from the party.

Make all arrangements for the telephone call: who is calling what number at what time? Normally you would make arrangements so that the party attending by teleconference is paying for the telephone call. Ensure that the cost of the call is covered. There may be an order of the registrar requiring that the call be at the expense of the party requesting the mediation session by telephone. (subrule 27)

Make arrangements for copies of all documents and reports that are relevant to the dispute which are held by the party who will be teleconferencing to be sent to you in advance of the mediation session. (subrule 27)

You may wish to send a copy of the agreement to mediate and Fee Declaration to the party attending by teleconference. British Columbia Mediator Roster Society members are required to use a written agreement to mediate. British Columbia Mediator Roster Society Standards of Conduct, s.11. You can also find sample agreements to mediate on the Society's webpage under Mediation Tools.


Teleconference Request On the Date of the Mediation Session:

A party may be unexpectedly unable to attend, and may ask the mediator on the day of the mediation session if they can attend by teleconference. This is permissible if all persons attending consent. (subrule 24)

If a party does not attend and does not contact the mediator, it may still be possible to contact them and arrange their attendance by teleconference. All of the persons attending the mediation session must consent to this. It may be in the interests of the parties to prevent a default which has occurred due to an unexpected circumstance. (Rule 7.3 Consent Teleconference Process Outline for Mediators)


Tips for Conducting the Mediation Session by Teleconference:
  • Do not try to get signatures during the mediation session from the person who is teleconferencing. Get the permission of the person(s) attending by teleconference for the mediator to sign the agreement to mediate on their behalf. As the parties are responsible for completing and filing the final Mediation Agreement, they can get the appropriate signatures after the session.

  • For instructions for using the telephone while teleconferencing and caucusing when teleconferencing see Rule 7.3 Teleconference Dialing Procedures.

Fees top

It is the responsibility of the mediator to negotiate the fees with the parties. The parties who attend the mediation session must complete and sign a Fee Declaration before, or at the beginning of the mediation session. (subrule 33) If the parties do not sign the Fee Declaration before or at the beginning of the mediation session the mediator must complete a Verification of Default. (subrule 37)

A Fee Declaration must disclose the cost of the mediation services and contain a declaration that establishes how the fees will be paid, whether in equal shares or on any other basis that has been agreed to by the parties and is specified in the Fee Declaration. (subrule 35) The cost of the mediation must be paid on the basis set out in the Fee Declaration unless the parties agree to a different basis for sharing that cost and that basis is referred to in the Mediation Agreement  (Additional Page).

Establish the method of pricing: either a fee for a completed 2 hour mediation session or a fee per hour if the mediation is likely to take more time, or more than one session. Ensure that you include payment for any disbursements. Decide on the date the payment is to be made. Establish the cancellation period, decide upon the amount of payment if the mediation is cancelled without sufficient notice to the mediator, and the amount of payment should the mediation be terminated because a party fails to attend, or for any other reason.


Tips for Collecting Fees:

A mediator must ensure that the agreement regarding fees is solid, and that the parties pay the fee that was agreed upon. It is generally easier to collect fees ahead of time rather than run the risk of dealing with collecting from parties after the mediation session. The mediator may wish to develop a practice of encouraging the parties to sign the Fee Declaration and make the fee payment for the first mediation session before the date of the first meeting. Faxed signatures on the Fee Declaration are sufficient. Deadlines can be set for the payment of fees that are well in advance of the mediation date to allow time for the cheques to clear the bank.

If the parties are reluctant to sign the Fee Declaration ahead of the session, the mediator may wish to reconsider his/her appointment as mediator for that case. If the mediator waits until the mediation session to have the parties sign the Fee Declaration and make a payment, one runs the risk of having one party fail to attend the session, or attend and refuse to sign the Fee Declaration. Then it may be difficult to collect the fees for the mediation session.


Conducting the Mediation top

Parties Attending:

Before going over the agreement to mediate check that all named parties are present, and check what role the other people attending expect to play in the mediation.

A party may attend a mediation session by representative if the party is not an individual. (subrule 20) If one or more attendees are representing a corporation, check authority and find out what their role/position is within the company. An entity which may attend by representative is often a company, signified by limited (Ltd.) or incorporated (Inc.) in the name. However, there are other entities which may send a representative.

For example, if the party is listed as Jane Smith dba Jane's Mediation Services then Jane Smith needs to be present in person. If the party is listed as Jane's Mediation Services then Jane may send a representative with authority. If two parties are listed as Jane Smith AND Jane's Mediation Services or Jane Smith, Jane's Mediation Services then Jane Smith must attend on her own behalf and Jane's Mediation Services may send a representative with authority.

A person or representative who attends a mediation session may be accompanied by a lawyer or articled student. (subrule 22)

Support persons: named parties may bring support persons to the mediation session if permitted by the mediator and consented to by all of the parties. (subrule 23)

Potential trial witnesses may attend the mediation session if permitted by the mediator and consented to by all of the parties, but the parties should be warned that attendance at the mediation session may damage the credibility of the witness's story later at trial.

Rule 7.3 mandates that parties must attend at the mediation session, and it is mandatory that the parties sign the Fee Declaration. If the parties have not yet signed the Fee Declaration when they arrive at the mediation session, they must complete and sign one at the beginning of the mediation session. (subrule 33)


Non-attendance top

All parties who do not have an exemption order (subrule 29) or a default order (rule 6) against them must attend the mediation session in order for the mediation session to be held.

A party might attend, but decline to participate. If a party attends, but declines to participate in the mediation session after signing the Fee Declaration, the mediator would complete a Result of Mediation form. The mediator would not complete a Verification of Default if the party attends at the mediation session.

You must give the parties a minimum 30 minutes grace period. If a named party does not attend the mediation session within one half hour of the scheduled commencement of the mediation session, the mediator is required to complete a Verification of Default, and give the completed form to each of the parties attending. (subrule 37)

The registrar can make an order dismissing the claim if a claimant does not attend or make a default order against the defendant. (subrules 38 and 40)

If none of the parties attend the mediation session, the mediator must complete a Verification of Default and the mediator must file the completed form at the registry. (subrule 41)

Note:  You can use the required 30 minute grace period to discuss with the parties who have attended the possibility of contacting the missing party by telephone in an attempt to hold the mediation. It is possible to have the missing party attend by teleconference if all parties agree to this procedure. Inform the parties of the provisions of subrules 37, 38, 39, 40 and 41, where a case can be dismissed or a default order can be made where a party fails to attend a mediation session and subrules 42, 43 and 44 where a party against whom an order is made can apply to a judge to have the order cancelled. If they still wish to contact the missing party in an attempt to hold the mediation session by teleconference, it should be done prior to the expiry of the 30 minute grace period. (Rule 7.3 Consent Teleconference Procedure)


Completing Form 31 - Verification of Default:

The mediator will use the Verification of Default when one or all of the parties fail to attend the mediation session, or if one or more parties refuse to sign the Fee Declaration before or at the beginning of the mediation session. When completing the Verification of Default, the mediator must ensure that the style of cause is written exactly the same as it appears on the Notice of Claim (see example).

When naming parties that attended make sure the names are written clearly. The registry staff needs to ascertain exactly who was in the room and who was not. If the party is a corporation, state the name of the corporate party, the name of the representative, and the position of the representative in the corporation. In a motor vehicle action, when an insurer attended on behalf of a defendant or a third party, indicate the relationship to the defendant or third party. Give a completed Verification of Default to each party who attends.

If none of the parties attend the mediation session, the mediator must complete a Verification of Default and the mediator must file the completed form at the registry. (subrule 41)


Agreement to Mediate top

Subject to subrule (18), Rule 7.3 mandates that all of the named parties attend the mediation session and sign a Fee Declaration. It does not require that the parties sign an agreement to mediate or participate in the mediation session.

The agreement to mediate forms the contract between the parties and the mediator. It is recommended that the mediator have the parties sign this important document, but the agreement to mediate is not forwarded to the court. It is retained by the mediator. The British Columbia Mediator Roster Society requires its members to use a written agreement to mediate. (British Columbia Mediator Roster Society Standards of Conduct, s.11)

Review the agreement to mediate with the parties. Ensure that all of the parties and support persons sign the agreement to mediate prior to commencing the mediation session. Print individual names, company names and the person's position within the company listed under each signature. In order to ensure confidentiality, every person in the mediation room should sign the agreement to mediate, including the mediator. Examples of agreements to mediate can be found on the British Columbia Mediator Roster Society's website under Mediation Tools.


Confidentiality top

A person must not disclose, or be compelled to disclose, in any proceeding oral or written information acquired in or in connection with a mediation session pursuant to Rule 7.3. (subrule 45) It is recommended that the mediator have the parties sign an agreement to mediate in order to bind them contractually to keeping information confidential.

Rule 7.3 does not preclude a party from introducing into evidence in any proceeding any information or records produced in the course of mediation that are otherwise producible or compellable in those proceedings. (subrule 47)

Exceptions to the rule of nondisclosure and non-compellability are listed below:
  1. any information, opinion, document, offer or admission that all of the parties agree in writing may be disclosed,
  2. any mediation agreement or fee declaration made during or in connection with a mediation session,
  3. any threats of bodily harm made during or in connection with a mediation session, or
  4. any information that does not identify the parties and that is disclosed for research or statistical purposes only. (subrule 46)
The mediator must keep all information related to the mediation confidential. If used, the agreement to mediate should be signed by the mediator to ensure that there is a binding contract between the parties and the mediator with respect to confidentiality.

The only documents the mediator is required to file on the court file are Form 24, Result of Mediation and, when none of the parties attend the mediation, Form 31, Verification of Default. The form of mediation mandated by Rule 7.3 is mandatory attendance. There is a requirement for the party to attend, there is no requirement for the party to participate.

No extra notes should be placed on the court file other than the information requested on the forms. For example, if you think you know why a party failed to attend the mediation session or why a party refused to participate, do not include written explanations on the court file.


Mediator's notes:

The length of time that confidential notes should be retained is up to the discretion of the mediator. Some mediators take notes and retain the notes for a reasonable period of time, taking into account the requirements of an insurer in an errors and omissions case. Some mediators take notes and destroy the notes immediately following the mediation and some do not take notes. Whatever practice the mediator wishes to adopt, the most important thing is that the confidential notes of the mediator do not end up on the court file.


Writing the Agreement top

When a mediation is concluded, whether or not a Mediation Agreement was reached, it is the responsibility of the mediator to complete and file a Result of Mediation form indicating whether or not an agreement was reached. (subrules 48 and 52)

It is the responsibility of the parties to prepare and file any Mediation Agreements  (Additional Page) that are reached. (subrule 48) If all or one of the parties are represented by counsel, the lawyer will normally draft and file the Mediation Agreement on behalf of the parties.

Where none of the parties are represented by counsel, and the mediator is a practising member of the Law Society of British Columbia, the mediator may assist the parties by preparing the Mediation Agreement. Where the mediator is a non-lawyer or a non-practising member of the Law Society of British Columbia, the mediator should allow the parties to document their Mediation Agreement either with the help of counsel or by themselves.


Documenting the Mediation top

It is important to ensure that all required documentation is completed and filed at the court registry at the conclusion of a mediation. Some documents are the responsibility of the mediator, some documents are the responsibility of the parties. Before leaving the parties, ensure that one of the parties has taken on the responsibility for the completion and filing of documents that are required to be filed by the parties.

Mediator's Responsibility:

The mediator is responsible for completing the following forms:
Fee Declaration (Form 30)
Verification of Default (Form 31)
Result of Mediation (Form 24)

The mediator is responsible for filing the following forms:
Verification of Default (Form 31) when none of the parties attend the scheduled mediation session
Result of Mediation (Form 24)

Parties' Responsibility:

The parties are responsible for completing the following forms:
Mediation Agreement (Form 25)  (Additional Page)
Notice of Withdrawal
Acknowledgement of Payment

The parties are responsible for filing the following forms:
Verification of Default (Form 31)
  • when one party has failed to attend a scheduled mediation session, the party or parties who attended are given the completed Verification of Default to file with the court
  • when one or more parties fail to sign a Fee Declaration
  • the party or parties who attended are given the completed Verification of Default to file with the court
Mediation Agreement (Form 25)  (Additional Page)
Notice of Withdrawal
Acknowledgement of Payment

Documents may be filed in person at the applicable registry location, by regular mail or by courier. Registry locations and contact information can be found on the Court Services website: http://www.ag.gov.bc.ca/courts/general/contacts.htm. Do not fax completed documents to the registry.

Forms Not Filed at the Registry:

The following forms are not filed at the Small Claims Court Registry:
Fee Declaration (Form 30)
Agreement to mediate (the mediator's contract with the parties, if used)

Note: Examples of agreements to mediate can be found on the British Columbia Mediator Roster Society's website under Mediation Tools.


Samples of Completed Forms (in alphabetical order) top

Click on the name of the form below for a quick link to a sample of each form or to get information on how to document various mediation scenarios and outcomes in the Mediation Scenarios section:

Acknowledgment of Payment
Consent to Teleconference Form (sample only)
Mediation Agreement - Full Settlement (Form 25)
Mediation Agreement - Partial Settlement (Form 25)
Additional Page (for Mediation Agreement)
Notice of Claim (Form 1)
Notice of Withdrawal
Reply (to a Notice of Claim)(Form 2)
Reply to Third Party Notice
Result of Mediation (Form 24)
Small Claims Pleadings
Third Party Notice (Form 3)
Verification of Default (Form 31)


Sample Small Claims Action top

Below is an example of a small claims action developed with a set of mediation scenarios to assist mediators when they are completing the various forms that are required when mediating pursuant to a Notice to Mediate for Claims Between $10 000 and $25 000.

Sample Pleadings:

Notice of Claim
Reply (to a Notice of Claim)
Third Party Notice
Reply to a Third Party Notice
Complete set of Pleadings


Mediation Scenarios:
  1. Failure to Sign Fee Declaration (Form 30)
  2. Failure of One Party to Attend the Mediation Session
  3. Failure of All Parties to Attend the Mediation Session
  4. Failure to Sign the Agreement to Mediate
  5. Mediation Session Held by Consent Teleconference
  6. Mediation Session Held - No Mediation Agreement Reached
  7. Mediation Session Held - Mediation Agreement Reached on Some Issues
  8. Mediation Session Held - Mediation Agreement Reached on All Issues


1. Failure to Sign Fee Declaration (Form 30) (subrule 37)

Scenario: The Defendant, Just the Basics Dry Cleaners Ltd., has refused to sign the Fee Declaration (Form 30).

Requirements: The mediator must complete a Verification of Default (Form 31) and give the completed form to the parties attending. Any one of the parties attending the mediation session may file the completed Verification of Default (Form 31) at the appropriate registry.

Sample of Completed Form: Verification of Default (Form 31)


2. Failure of One Party to Attend the Mediation Session (subrules 37 and 39)

Scenario: All parties have attended the scheduled mediation session except the Defendant, Johnny Clean. The mediator was unable to gain consent of the attending parties to contact Johnny Clean by telephone. The mediation session did not proceed.

Requirements: The mediator must complete a Verification of Default (Form 31) and give the completed form to the parties attending. Any one of the parties attending the mediation session may file the completed Verification of Default (Form 31) at the appropriate registry.

Sample of Completed Form: Verification of Default (Form 31)


3. Failure of All Parties to Attend the Mediation Session (subrule 41)

Scenario: None of the parties have attended the scheduled mediation session.

Requirements: The mediator must complete a Verification of Default (Form 31) and the mediator must file the completed form at the appropriate registry.

Sample of Completed Form: Verification of Default (Form 31)


4. Failure to Sign the Agreement to Mediate (subrule 52)

Scenario: All parties have attended the mediation session but the Third Party, Keen to Kleen Leather Specialists Ltd., have refused to sign the mediator's agreement to mediate. The mediation session is unable to proceed.

Requirements: The mediator must complete a Result of Mediation (Form 24) and file the completed form at the appropriate small claims registry.

Important Note: Under this rule parties are required to attend a mediation session but they are not required to participate. In this scenario, all parties have met the attendance requirement and therefore a Verification of Default (Form 31) is not applicable. There are no consequences for refusing to sign the mediator's agreement to mediate or for refusing to participate in the mediation session. The mediator should not include any written documentation on the court file as to the reason why a particular party chose not to participate.

Sample of Completed Form: Result of Mediation (Form 24)


5. Mediation Session Held by Consent Teleconference (subrule 24 and 52)

Scenario: All parties have attended the scheduled mediation session except Johnny Clean. The mediator was successful in gaining written consent of the other parties to contact Johnny Clean by telephone. The mediation session proceeded by teleconference. The parties did not reach an agreement of the issues.

Requirements: The mediator must complete a Result of Mediation (Form 24) and file the completed form at the appropriate small claims registry.

Note: If a party obtains an order of the registrar to attend the mediation session by telephone, consent of the other parties is not required.

Sample of Completed Forms: Sample Consent Teleconference Form, Result of Mediation (Form 24)


6. Mediation Session Held - No Mediation Agreement Reached (subrule 52)

Scenario: All parties attended the mediation session and signed the mediator's agreement to mediate. The parties did not reach an agreement on the issues.

Requirements: The mediator must complete a Result of Mediation (Form 24) and file the completed form at the appropriate small claims registry.

Sample of Completed Form: Result of Mediation (Form 24)


7. Mediation Session Held - Mediation Agreement Reached on Some Issues (subrule 48)

Scenario: All parties attended the mediation session, signed the mediator's agreement to mediate, and an agreement on some issues was reached.

Terms: The Defendant, Just the Basics Dry Cleaners Ltd., agreed to pay the Claimant $5 000 for the wholesale cost of lost items. A cash payment of $400 dollars was made in the mediation session and a certified cheque for $4 600 will be mailed to the Claimant. Neither of the Defendants, Just the Basics Dry Cleaners Ltd. and Johnny Clean, nor the Third Party, Keen to Kleen Leather Specialists Ltd., agreed to reimburse the Claimant for the loss of revenue or expenses.

Requirements: The mediator must complete a Result of Mediation (Form 24) and file it at the appropriate registry. The parties must complete and sign a Mediation Agreement (Form 25) and any one of those parties may file the Mediation Agreement at the appropriate registry. A settlement conference will be scheduled for the remaining issues. Notices of Settlement Conference will be mailed to the remaining parties.

Sample of Completed Forms: Result of Mediation (Form 24), Mediation Agreement (Form 25), Acknowledgement of Payment


8. Mediation Session Held - Mediation Agreement Reached on All Issues (subrule 48)

Scenario: All parties attended the mediation session, signed the mediator's agreement to mediate, and an agreement on all issues was reached.

Terms: The Defendant, Just the Basics Dry Cleaners Ltd., agreed to pay the Claimant $8 000 and will pay the agreed upon amount in 4 equal installments. The Third Party, Keen to Kleen Leather Specialists Ltd., agreed to pay $4 000 to the Defendant, Just the Basics Dry Cleaners Ltd. All of the parties agreed that Johnny Clean was not responsible and the Claimant agreed to withdraw Johnny Clean from the action.

Requirements: The mediator must complete a Result of Mediation (Form 24) and file it at the appropriate registry. The parties must complete and sign a Mediation Agreement (Form 25) and any one of those parties may file the Mediation Agreement at the appropriate registry. The Claimant must complete a Notice of Withdrawal and file it at the appropriate registry.

Sample of Completed Forms: Result of Mediation (Form 24), Mediation Agreement (Form 25), Notice of Withdrawal