As previously noted, going to trial can be an expensive, time consuming and exhausting. In light of the risk, delay and costs involved in going to court, there are a few other options available to you. The most common alternative is called “mediation.” Mediation is an informal meeting between you, your lawyer (if you have one) and the defendant (often the Insurance Company of British Columbia). A mediator will also be present. This individual runs the process and helps to resolve the issues through negotiation without going to court.
What happens in mediation?
At the start of a mediation session your lawyer will briefly explain your claim and set out what they believe your claim is worth and why. Following this, the lawyer for defence will present how they view your claim. Usually after this the two sides will separate and the mediator will communicate offers and counter-offers back and forth in hopes of coming to a negotiated settlement agreement.
Do I have to attend mediation?
Under the Insurance (Vehicle) Act’s Notice to Mediate Regulation, any party to a motor vehicle action may initiate mediation by serving a notice to mediate on the other party. The party wishing to mediate must send notice no earlier than 60 days after the close of pleadings and no later than 77 days before the trial is to begin. The regulation requires that if notice to mediate is served by one party, the other party must meet for no less than three hours in attempt to negotiate a settlement. On conclusion, the mediator, if asked, will provide a certificate of completion.
Is mediation confidential?
Yes. At common law, discussions and information shared in any type of settlement negotiation are confidential. Participants may not be compelled to give evidence about anything that was discussed in a mediation proceeding. This is because the purpose of mediation is to encourage a settlement without having to go to court. If parties could not speak freely, mediation would not likely be successful. Generally, confidentiality agreements are explained and signed before commencing mediation.
Mediation and ICBC…
ICBC will often opt to hold a mediation session before heading to trial. Like any other defendant, they can compel you to attend mediation under the Insurance (Vehicle) Act. If you are required to attend, the same protections discussed above will apply. You do not have give any information you do not wish to, but if you do, it will not be used against you later in court.
There are many positive aspects to mediation…
As the Ministry of the Attorney General’s “Guide to Mediation in BC” points out, there are lots of potential benefits to participating in mediation including
- Savings of time and money
- Ability to reach a settlement and access funds quickly
- Ability to keep affairs private and out of the public eye
- There is a significant element of control to mediation. For example, each of the parties maintains the ability to design the settlement and agree to live by it rather than have a court mandated solution.
- The “informal setting and atmosphere of mediation is conducive to productive communication between the parties”
- Mediators are trained to help separate people’s feelings from the problems, which can reduce tension and allow solutions to develop.
Whether with ICBC or another defendant, mediation is nothing to be concerned about. It is an “off the record” opportunity to resolve your case. However, be sure to ask your lawyer any questions you have and listen to your lawyer’s advice as best as you can.
 Insurance (Vehicle) Act, RSBC 1996, c 231, s. 2(2).
 Michael W. Biggs [et al.] British Columbia Motor Vehicle Accident Claims Practice Manual (Vancouver: Continuing Legal Education Society of British Columbia, 2011) Looseleaf, 12-4.
 Middlekamp v. Fraser Valley Real Estate Board (1992) 71 BCLR (2d) 276 (C.A.).
 Ministry of Attorney General “Guide to Mediation in BC” Available at: http://www.ag.gov.bc.ca/dro/mediation-in-bc/index.htm