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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 under Rule 10 or, in the case of an application, the first affidavit, memorandum or other document filed by a respondent under 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 or their solicitors if the parties are represented, or both the parties and their solicitors, 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) "mediation co-ordinator" means the person designated by the Registrar to administer the Court ordered mediation process contemplated by this rule;
(d) "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 under a 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) 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 paragraph (1), the Court shall take account of the relevant 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 mediation is contemplated;
(d) whether a party is represented by a solicitor;
(e) the financial resources of the parties; and
(f) whether mediation, under this rule or otherwise, has been held on a previous occasion.
(3) Unless otherwise ordered
(a) a mediation ordered under this rule shall commence within 24 days of the date of the mediation order; and
(b) a party shall not be required to participate in mediation under a mediation order for a period longer than 4 hours in total.
(4) A mediation under this rule shall be conducted by
(a) a person appointed by the judge making the mediation order;
(b) a mediator appointed 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 appointed 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 under clause (b) or (c); or
(e) 2 or more persons appointed as co-mediators by the judge making the mediation order.
(5) A mediation order may contain the following provisions:
(a) the name of the mediator or an order to select a mediator under paragraph (4);
(b) the time within which the mediation shall commence;
(c) the maximum length of the mediation, subject to agreement by the parties to extend the length of the mediation;
(d) the responsibility for payment of costs of the mediation including fees and expenses of the mediator and the manner and timing of payment of those costs;
(e) a dispensation for a party from attendance at a mediation session;
(f) a requirement that some other person attend the mediation in place of or in addition to a party; and
(g) those other terms and conditions as, in the opinion of the judge, may be desirable to facilitate the mediation.
(6) Unless otherwise ordered, where a mediation order is made, all further proceedings are stayed until the mediators report is filed under rule 37A.06, 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.
Procedure at mediation sessions
37A.04. (1) Following the appointment of a mediator, the parties shall expeditiously contact the mediator to set a time for the mediation.
(2) Unless the parties and the mediator agree otherwise, at least 7 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 partys position and copies of all documents relevant to the proceeding. The plaintiff or applicant shall provide the mediator with a copy of the relevant pleadings.
(3) If it is not practical to conduct a mediation session because a party fails to comply with paragraph (2), the mediator may cancel the session and immediately 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 otherwise ordered.
(5) Unless otherwise ordered, 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.
(6) The parties, or in the absence of a party the persons representing the party in attendance at a mediation session, shall have authority to settle the dispute.
(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.05. (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 or where a party fails to comply with a requirement of this rule, another party may apply for, or the Court on its own motion may make, an order that is considered just, including an order
(a) establishing a timetable for the proceeding;
(b) requiring a further mediation session at the expense of the defaulting party;
(c) requiring a person to attend a rescheduled mediation session;
(d) staying further proceedings in Court until a mediation session has been conducted in compliance with this rule;
(e) striking out a document filed by a party; and
(f) as to costs or setting the matter for a hearing in Court with respect to costs.
Results of mediation
37A.06. (1) Unless otherwise ordered, within 10 days after a mediation is concluded, the mediator shall
(a) file with the mediation co-ordinator and deliver to each of the parties participating in the mediation a report indicating on which issues agreement has been reached; and
(b) if all parties request, provide to the parties a report
(i) identifying the remaining points of difference, if any, and
(ii) containing recommendations that the mediator considers appropriate to make as to how the remaining issues might be resolved.
(2) The mediators report filed under clause (1)(a) 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 the trial judge.
(3) All communications during a mediation session
(a) shall constitute without prejudice settlement discussions;
(b) shall be privileged from disclosure; and
(c) shall not be admissible as evidence in a proceeding.
(4) Communications under paragraph (3) include, but are not limited to, the following:
(a) the mediators recollections of a mediation session;
(b) the mediators notes and records relating to a mediation session; and
anything said or written down during a mediation session.
(5) A mediator shall not be a compellable witness regarding any aspect of a mediation session relating to the issues being mediated or the results including discussions relating to those issues.
A mediator appointed under these rules may stipulate that he or she is not liable for loss or damage suffered by a person by reason of an action or omission of the mediator in the discharge of his or her duties under these rules.
(7) 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.
(8) Notwithstanding paragraphs (3) and (4), an agreement under paragraph (7) shall be admissible in evidence for the purpose of enforcing that agreement.
(9) If an agreement under paragraph (7) settles the action, the Plaintiff shall file a Memorandum of Settlement under rule 39.09
(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.
(10) If following mediation the proceeding remains unresolved in whole or in part, a party may proceed with the conduct of the proceeding, or that portion of the proceeding that remains unresolved, in the normal course.
(11) Where a party to a signed agreement fails to comply with its terms, another 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 those 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.
37A.07. U nless otherwise ordered or the parties otherwise agree, the mediators fees and expenses shall be borne equally by the parties to the mediation.
(1) A mediator on the mediators list shall file with the Court the mediators schedule of fees.
A mediator under this rule,
who is on the mediators list shall not charge fees for his or her services in excess of those filed with the Court, or
who is not on the mediators list shall not charge fees and expenses in excess of a schedule of fees negotiated in advance with the parties and reduced to writing.
37A.08. (1) A mediator on the mediators list shall file with the Court the mediators schedule of fees.
(2) A mediator under 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 Court, or
(b) who is not on the mediators list shall not charge fees and expenses in excess of a schedule of fees negotiated in advance with the parties and reduced to writing.
(1) On notice to the mediator, t
he Registrar may remove from the mediators list the name of a mediator who does not comply with this rule or an order made under this rule.
[Rep. by 36/14 s46]
(2) [Rep. by 36/14 s46]
37A.10. This Rule shall not apply to family law proceedings.