This is an official version.
Copyright © 2006: Queens Printer,
of the Supreme Court, 1986 (Amendment)
Under the authority of section 55 of the Judicature Act, the Rules Committee of the Trial Division makes the following rule.
Barry R. Sparkes,
††††††† 1. † Rule 37A Added
††††††††††††† 37A.01 ††††††††††††††††† Definitions
††††††† 2. † Commencement
††††††† 1. The Rules of the Supreme Court, 1986 are amended by adding immediately after Rule 37 the following:
37A.01.† In this rule, unless the context otherwise requires, the following words and phrases shall have the following meanings:
†††††††††††† (a)† "defence" means a statement of defence filed by a defendant pursuant to Rule 10 or, in the case of an application, the first affidavit, memorandum or other document filed by a respondent pursuant to Rule 29, and in the case of a matter involving multiple defendants or respondents, it means the first defence or document so filed;
†††††††††††† (b)† "mediation" means a process of discussion between parties, and their solicitors if the parties are represented, under the direction of a neutral third party with a view to facilitating communication among the parties to assist them in reaching a mutually acceptable resolution of some or all of the issues in dispute;
†††††††††††† (c)† "mediators list" means a list of names of mediators approved by the Registrar;
†††††††††††† (d)† "mediation co-ordinator" means the person designated by the Registrar from time to time to administer the court ordered mediation process contemplated by this rule; and
†††††††††††† (e)† "mediation order" means an order made under rule 37A.03.
37A.02.† The purpose of this rule is to establish a mechanism to provide mandatory mediation pursuant to court order in individual cases so as to reduce cost and delay in litigation and to facilitate the early and fair resolution of disputes.
Court ordered mediation
37A.03.† (1) At any time following the filing of a defence, the court may, on the application of a party or on its own motion, order that the parties named in the order participate in mediation in accordance with the provisions of this rule.
†††††††††††† (2)† In considering whether to exercise the power conferred by rule 37A.03(1), the court shall take account of all the circumstances including:
†††††††††††† (a)† the number of parties, the state of the pleadings and the complexity of the issues in the proceeding;
†††††††††††† (b)† the nature of the legal issues raised in the proceeding;
†††††††††††† (c)† the stage of the proceeding at the time the invocation of this rule is contemplated;
†††††††††††† (d)† whether a party is not represented by a solicitor;
†††††††††††† (e)† the financial resources of the parties; and
††††††††††††† (f)† whether mediation, under this rule or otherwise, has been tried on a previous occasion.
†††††††††††† (3)† Unless otherwise ordered by the court:
†††††††††††† (a)† a mediation ordered under this rule shall commence within 24 days of the date of the mediation order;
†††††††††††† (b)† a party shall not be required to participate in mediation pursuant to any mediation order for a period longer than four hours in total; and
†††††††††††† (c)† the costs of the mediatorís services shall be borne equally by the parties.
†††††††††††† (4)† A mediation under this rule shall be conducted by:
†††††††††††† (a)† a person named by the judge making the mediation order;
†††††††††††† (b)† a mediator chosen by agreement of the parties from the mediators list, within 10 days of the date of the mediation order;
†††††††††††† (c)† a person who is not on the mediators list, if the parties consent and if that person is chosen within 10 days of the date of the mediation order;
†††††††††††† (d)† a mediator assigned by the mediation co-ordinator from the mediators list in default of notification within that time by the parties of agreement pursuant to clause (b) or (c); or
†††††††††††† (e)† where the judge orders, two or more persons as co-mediators, and where ordered, any reference to the singular in this rule shall include the plural.
†††††††††††† (5)† A mediation order may contain the following provisions:
†††††††††††† (a)† the name of a specific person to conduct the mediation or an order that a mediator be selected as otherwise provided in rule 37A.03(4);
†††††††††††† (b)† the time within which the mediation shall commence;
†††††††††††† (c)† the maximum length of the mediation which shall be subject to agreement of the parties to extend the length of the mediation;
†††††††††††† (d)† the time within which the mediatorís report shall be filed with the court;
†††††††††††† (e)† the responsibility for payment of costs associated with the mediation and the manner and timing of payment of those costs;
††††††††††††† (f)† a dispensation for a party from attendance at any mediation session;
†††††††††††† (g)† a requirement that some other person attend the mediation in place of or in addition to a party; and
†††††††††††† (h)† such other terms and conditions as, in the opinion of the judge, may be desirable to facilitate the mediation.
†††††††††††† (6)† Unless the court otherwise orders, where a mediation order is made, all further proceedings are stayed until the mediatorís report is filed pursuant to rule 37A.04, and any time limited for the doing of an act or the filing of a document under the Rules shall be suspended for the period of the stay.
37A.04.† (1) Every person who conducts a mediation under this rule, whether named on the mediators list or not, shall comply with this rule and every order made† under this rule.
†††††††††††† (2)† All communications at a mediation session and the mediatorís notes and records shall constitute without prejudice settlement discussions and shall be privileged from disclosure.
†††††††††††† (3)† The Registrar may remove from the mediators list the name of any mediator who does not comply with this rule or any order made under this rule.
†††††††††††† (4)† The Registrar may appoint a mediation advisory committee to provide advice as to matters which may arise under this rule.
Procedure at mediation sessions
37A.05.† (1) Following the appointment of a mediator, the parties shall expeditiously contact the mediator with a view to setting a time or times for the holding of the mediation.
†††††††††††† (2)† At least seven days before the first scheduled mediation session, each party shall provide to the mediator and each other party a brief statement of factual and legal issues in dispute, a summary of that partyís interests and copies of all documents considered of central importance in the proceeding.† The plaintiff shall also provide the mediator a copy of all relevant pleadings.
†††††††††††† (3)† If it is not practical to conduct a mediation session because a party fails to comply with rule 37A.05(2), the mediator may cancel the session and forthwith file with the mediation co-ordinator a certificate of non-compliance.
†††††††††††† (4)† The parties, and their solicitors if the parties are represented, shall attend the mediation session unless the court otherwise orders.
†††††††††††† (5)† If an insurer may be liable to satisfy all or a part of a judgment in the proceeding or to indemnify or reimburse a party for money paid in satisfaction of all or a part of a judgment in the proceeding, a representative of the insurer and its solicitor shall attend the mediation session, unless the court otherwise orders.
†††††††††††† (6)† The parties, or persons representing parties in attendance at a mediation session, shall have authority to settle the dispute unless the Court otherwise orders.
†††††††††††† (7)† The procedure and methodology to be followed at a mediation session may vary according to the particular style and approach of the mediator who shall, after consultation with the parties, adopt an approach which in his or her opinion is best calculated to facilitate the purposes of the mediation and otherwise complies with the requirements of this rule.
Failure to attend and other non-compliance
37A.06.† (1) If it is not practical to conduct a scheduled mediation session because a party fails to attend within 30 minutes of the time scheduled for the commencement of the session, unless the parties in attendance agree otherwise, the mediator shall cancel the session and immediately file with the mediation co-ordinator a certificate of non-compliance.
†††††††††††† (2)† Where a mediator files a certificate of non-compliance pursuant to rules 37A.05(3) and 37A.06(1) or where a party fails to comply with any requirement of this rule, including rules 37A.05(4), (5) or (6), any other party may apply for, or the court on its own motion may make, an order
†††††††††††† (a)† establishing a timetable for the proceeding;
†††††††††††† (b)† requiring the holding of a further mediation session at the expense of the defaulting party;
†††††††††††† (c)† ordering any person to attend a rescheduled mediation session;
†††††††††††† (d)† requiring the defaulting party to pay the whole or any part, exceeding 50 percent, of the fees and expenses of the mediator with respect to any mediation session previously scheduled but not held or improperly conducted as a result of the non-compliance of the defaulting party;
†††††††††††† (e)† staying further proceedings in court until a mediation session has been conducted in compliance with this rule;
††††††††††††† (f)† striking out any document filed by a party;
†††††††††††† (g)† dismissing the proceeding, if the defaulting party is a plaintiff, or striking out the statement of defence, if that party is a defendant;
†††††††††††† (h)† ordering a party to pay costs; and
††††††††††††† (i)† making any other order that is just.
Results of mediation
37A.07.† (1) Within 10 days after mediation is concluded, the mediator shall file with the mediation co-ordinator and deliver to each of the parties participating in the mediation a report in writing on the mediation indicating whether agreement has been reached, subject to rule 37A.07, on any of the issues in dispute, and, if all parties request, a report,
††††††††† (a)† identifying the remaining points of difference, if any, and
†††††††††††† (b)† containing any recommendations that the mediator deems fit to make as to how any such remaining issues might be resolved.
†††††††††††† (2)† The mediatorís report filed pursuant to rule 37A.07(1) shall, unless it reports that the matter has been resolved, be sealed by the mediation co-ordinator and be kept separate from the court file containing the pleadings and shall not be disclosed to any trial judge who may thereafter try the case.
†††††††††††† (3)† If there is an agreement resolving all or any of the issues in dispute, it shall be in writing and signed by all parties participating in the agreement or their solicitors.
†††††††††††† (4)† If the agreement settles the action, the parties shall file a Memorandum of Settlement pursuant to rule 39.06
†††††††††††† (a)† in the case of an unconditional agreement, within 10 days after the agreement is signed, and
†††††††††††† (b)† in the case of a conditional agreement, within 10 days after the condition is satisfied.
†††††††††††† (5)† If following mediation the proceeding remains unresolved in whole or in part, any party may proceed with the conduct of the proceeding, or that portion of the proceeding that remains unresolved, in the normal course.
†††††††††††† (6)† Where a party to a signed agreement fails to comply with its terms, any other party to the agreement may apply to the court for
†††††††††††† (a)† judgment in the terms of the agreement, and the court may grant judgment accordingly or with such modifications as subsequent circumstances may require to ensure that the applying party receives that to which the applying party is substantially entitled under the agreement; or
†††††††††††† (b)† leave to continue the proceeding as if there had been no agreement.
Costs of mediation
37A.08.† (1) Unless the court otherwise orders or the parties otherwise agree, the mediatorís fees and incidental expenses shall be borne equally by the parties who are ordered to participate in a court ordered mediation.
†††††††††††† (2)† A mediator on the mediators list shall file with the Registrar the mediatorís schedule of fees.† The Registrar may remove from the mediators list a mediator whose fees the Registrar may consider unreasonable.
†††††††††††† (3)† A mediator engaged pursuant to this rule,
†††††††††††† (a)† who is on the mediators list shall not charge fees for his or her services in excess of those filed with the Registrar, or,
†††††††††††† (b)† who is not on the mediators list shall not charge fees and incidental expenses in excess of a schedule of fees negotiated in advance with the parties and reduced to writing.
37A.09.† This rule shall not apply to family law proceedings.
††††††† 2. This rule shall come into force on
©Earl G. Tucker, Queen's Printer