April 26, 2002

Contents

1. Consultation Process
2. Concept of Court Annexed Mediation
3. Principles
4. Recommendations for a Court Annexed Mediation Program for Civil Cases in the Court of Queen's Bench of Alberta

1. Consultation Process

The Minister of Justice, the Honourable Dave Hancock, Q.C., authorized a consultation process to consider and make recommendations on the implementation of court annexed mediation in civil cases. Alberta Justice, Court Services Branch, and Alberta Community Development, Volunteer Services Branch, in partnership and with the advice and assistance of a Steering Committee1 , the members of which are listed in section 6, designed and implemented a consultation process in three stages. The three stages of the consultation process were:

1. A Visioning session held November 16, 2002, concurrently with a national conference, Negotiating the Future: Court Annexed Mediation in our Civil Courts. At the conference, 21 speakers and presenters discussed current practices in court annexed mediation in various programs in Canada and the United States. Ninety people participated in a visioning process, and developed draft models for a "made in Alberta" court annexed mediation program.
   
   
2. Focus Groups in Calgary and Edmonton were held February 14 and 21, 2002. Approximately eighty participants took part in discussions focusing on Benefits and Concerns, Critical Principles and Potential Outcomes of a Court Annexed Mediation Program to be initiated as a pilot project.
   
   
3. A Working Committee, chosen by the Steering Committee to represent a wide array of stakeholder groups and organizations, met April 24 to 26, 2002 to determine the recommendations to be made to the Minister of Justice. The committee reviewed the information generated at both stage one and stage two of the consultation process to develop the recommendations and model in the report.

2. Concept of Court Annexed Mediation

Court-annexed mediation means that mediation is available, and may be mandated, as part of the litigation process. The mediation program may be an integral part of the organization of the court, it may be totally separate from the court and litigation process, or the connection between the court and the mediation program may fall somewhere between these two extremes.

In Saskatchewan, the Court of Queen's Bench Act requires that parties to all civil cases attend a mediation session. The mediators are employed by the Mediation Services Branch of Saskatchewan Justice, and provide one hour for the mediator to prepare, and three hours of mediation at no charge. Where necessary the mediator begins with information about mediation and a discussion about mediation in the case. Parties may continue after the three hours, but pay a fee determined on a sliding scale. Parties may apply for an exemption from the requirement to mediate. This mediation program is highly integrated with the court process.

In Toronto and Ottawa, the mediation programs are also highly integrated with the court process although private practitioners, rather than government employees provide mediation services. The Rules of Court applying in Toronto and Ottawa require each civil case to go to mediation after a Statement of Defence has been filed, unless an exemption from the requirement to mediate is granted. Parties pay mediators directly unless they show that they cannot afford to pay. In those cases, mediators on the mediation roster still provide services, as each mediator agrees to provide 12 hours of mediation per year without charge for those who cannot afford to pay.

In British Columbia, the Notice to Mediate program is a court-annexed mediation program, but its only connection with the court is that the court has passed a rule allowing it. If one party wishes to mediate, that party serves a Notice to Mediate on the other party. The parties then retain a mediator, pay the mediator and either discontinue their lawsuit or go to trial. Although the court is supposed to be informed if a mediation has taken place, and whether a case has been resolved, often it is not, so the court is not aware of all of the cases in which mediation has taken place, or the total number of mediations occurring under its rules. This program is less integrated with the court process than the previous examples.

In Alberta, the Provincial Court Civil Claims Mediation Program operating in Edmonton and Calgary is highly integrated with the court. Mediation is mandated for selected cases after a Dispute Note has been filed. Mediators from a roster mediate without charge to the parties. The mediators receive an honorarium. Mediation in family cases is less integrated with court processes. It may be provided at any stage in the proceedings if the parties wish, but the courts may have no information it is taking place, or any record that it has occurred. Family mediation is provided free of charge to families with cases involving custody and access in Provincial Court, Family Division, or the Court of Queen's Bench, if one party has an annual income of less than $40,000. The mediators are employees of Alberta Justice, Court Services, Family Mediation Services, or are on contract.

3. Principles

The recommendations in this report are based on the following principles:

1. Accessibility - A court annexed mediation program, when fully implemented, will be accessible to all parties with civil, non-family cases in the Court of Queen's Bench of Alberta, regardless of the type of claim, the parties' location or their ability to pay.
2. Appropriateness - The program will be flexible enough to allow for opting out where cases are not appropriate for mediation.
3. Competence - Standards for mediators' education and provision of mediation services will be set and monitored, so that a fair, high quality service is consistently provided.
4. Awareness / Understanding - Information will be made available so that the public is aware of the program, and parties understand the mediation process and how to best make use of it.
5. Effectiveness - The program will provide a quality mediation process that is simple, affordable, and effective, and empowers parties to negotiate agreements that meet their needs.
6. Properly supported - The program will have adequate financial support and resources, both during the pilot phase, and afterwards. Leadership, government-funded administration, and well trained and fairly compensated mediators will be in place.
7. Timeliness - The program will provide parties with the opportunity to negotiate early or timely resolution of disputes.

4. Recommendations for a Court Annexed Mediation Program for Civil Cases in the Court of Queen's Bench of Alberta

The working committee wishes to emphasize a number of points, in making these recommendations:

• The committee was advised at the outset of its deliberations that some resources could be allocated for mediation in the Court of Queen's Bench in the short term but there would not be significant new resources for this initiative. This affected the consensus reached.
• The committee's first choice would be to see a properly resourced Caseflow Management program in place, with mediation integrated into it, but in view of current resources, it makes the recommendations below.
• For these recommendations to be successful, a court annexed mediation program in the Court of Queen's Bench must be provided with adequate resources.
• Evaluation of any pilot projects is critical, to ensure that litigants are well served by them.
• Any court annexed mediation program must be set up so that it is in harmony with, and complementary to, the existing litigation process.

The committee recommends:

Building awareness and understanding of mediation

1. Information to help parties understand the mediation process and how to best make use of it be provided or available to them from the time pleadings are filed, throughout the litigation process.
   
   
2. A committee consider the issue of how to best provide education to help parties, counsel, others working in the justice system, and the public to develop an awareness and understanding of mediation.

Interest Based Mediation

3. A court annexed mediation program provide interest based mediation services only.

Request to Mediate

4. Upon the filing of an Affidavit of Records, either party may file and serve a Request to Mediate. Upon service of the Request to Mediate, the Respondent can (i) agree to participate in a mediation; or (ii) file and serve a Notice of Motion requesting (a) postponement of the mediation to a more appropriate time; or (b) relief from the requirement to mediate.
   
   Relief from the requirement to mediate will only be granted by the Court upon evidence of sufficient cause. A party who, without sufficient cause, fails to mediate in response to the Request to Mediate, is liable to pay costs in a manner similar to that set out in R. 190 of the Alberta Rules of Court (Failure to File an Affidavit of Records).
   
   Court-annexed mediation will not diminish the right of the parties to mediate on a voluntary basis at any time before or after the commencement of litigation.

Expectation that Parties will use Mediation

5. Whether or not a Request to Mediate is served, it is expected that parties to each civil case will mediate before the time of the Pretrial Conference. The parties may mutually agree that the action is not suitable for mediation and present their reasons to the Pre-trial Conference Justice. The Justice will consider their reasons in determining readiness for trial, and may recommend they use mediation or Judicial Dispute Resolution.

Standards for Mediation

6. A committee establish standards for education and competence for mediators, and for the provision of mediation services, a code of ethics and a system to manage complaints. If the Court of Queen's Bench does not wish to have representation on the committee, the court should still have the opportunity to provide input and participate in discussions on these issues.

Compensation for Mediators

7. Mediators be fairly compensated.

Payment for Mediation

8. Parties and mediators negotiate the amount of the fees for mediation. Parties are expected to split fees equally except in unusual circumstances, or where some parties are only marginally involved.

Jurisdiction of Provincial Court, Civil Division

9. The jurisdiction of Provincial Court, Civil Division be increased, so that mediation without charge will be available to more people, who otherwise would have to take claims that are not economical to litigate, to the Court of Queen's Bench.

Increase Filing Fees

10. Add a surcharge to the filing fees for the Court of Queen's Bench, to fund mediation for those who show, by way of a means test, that they are unable to afford it.

Adequate Resources

11. Adequate resources be provided to support any court annexed mediation program created, including funds for Alberta Justice to hire managers with expertise in mediation and administrative assistants.

Confidentiality of Process

12. The mediation process be confidential and all discussions in mediation be without prejudice, unless the parties agree otherwise and record their agreement in writing. The meaning of confidentiality should be defined, setting out exceptions such as the necessity of discussing cases with program staff, and situations where disclosure is required by law. The committee has not addressed the matter of whether some kind of record of mediation should be kept, either for protection of mediators in case of complaints, or for parties to use where they agree that is desirable. The committee suggests this matter be considered by an implementation committee.

Mediators Non Compellable

13. Mediators not be compellable as witnesses. This should be legislated.

Evaluation

14. A committee develop an evaluation process for the program, including such elements as surveys and a quality tracking system for relevant information. The committee should also analyze the costs and benefits of the program to parties.

Pilot Project

15. A pilot project to test these recommendations should take place, over at least a two year period. Over this time, an ongoing review should take place, of what is working and what needs modification.
    
    
16. Pilot projects be located in one larger and one smaller centre. The working committee suggests that these be Edmonton and Lethbridge, subject to the approval of the Chief Justice of the Court of Queen's Bench.

Implementation

17. An implementation committee address, through subcommittees or otherwise, all aspects of the program, including rosters, standards and evaluation. A roster of mediators will include mediators, both lawyers and non-lawyers, who have complied with set standards. Parties do not need to use someone from the roster to comply with the requirement to mediate.
    
    
18. The implementation committee should have an ongoing liaison with the Court of Queen's Bench, which may also wish to have an implementation committee to consider court issues.

Next Steps

19. An implementation committee be authorized to implement pilot projects in accordance with the Minister's directions.

1. Members of the Steering Committee are: The Honourable Mr. Justice R.P. Belzil, The Honourable Mr. Justice P.T. Costigan, The Honourable Judge J.H. Goss, Doug Balsden, Alberta Community Development, Lucille Birkett, Q.C., Birkett Ticoll Peterson, Leila Gosselin, City Solicitor's Office, Calgary, Linda Long, Bosecke Song, Peter Lown, Q.C., Alberta Law Reform Institute, Juliana Topolniski, Q.C., Bishop McKenzie, Camilla Witt, Q.C., Alberta Justice (Chair)