Newfoundland and Labrador Court Ordered Mediation (Rule 37A)
Newfoundland and Labrador Supreme Court allowing court-ordered mandatory mediation in civil (non-family) cases.
Newfoundland and Labrador
Supreme Court of Newfoundland and Labrador (Trial Division)
Supreme Court Trial Division Rule's Committee
Rule 37A, governing Court Ordered Mediation, came into force on April 1, 2003. It applies to all non-family law civil cases.
"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" (r. 37A.02).
Rule 37A envisions the mediation process as one "of discussion between parties...under the direction of neutral third party...to assist them in reaching a mutually acceptable resolution" (r. 37A.01(b)).
Although the Rule contemplates "interest-based" mediation, the "procedure and methodology to be followed...may vary according to the particular style and approach of the mediator" (r. 37A.05(7)).
The Court, on the application of a party or on its own motion at any time following the filing of a defence, may order the parties to participate in mediation (r. 37A.03(1)).
Unless otherwise ordered, the mediation must commence within 24 days of the date of such order, it should last no longer than four hours in total and the costs thereof are born equally by the parties (r. 37A.03(3)). All further proceedings are stayed until the mediator's report is filed (r. 37A.03(6)).
Once the mediation has been scheduled, the parties are required to provide the mediator and each other party with a brief statement of factual and legal issues in dispute, a summary of that party's interests and copies of all documents considered of central importance in the proceeding at least seven days before the session (r. 37A.05(2)). The mediator is required to file a mediation report within 10 days after the mediation is concluded indicating whether agreement has been reached (r. 37A.07(1)).
If an agreement has been reached at the mediation, the parties have to file a Memorandum of Settlement pursuant to r. 39.06. Otherwise, the case proceeds in the normal course
Concerns raised regarding Rule 37A
- Rule 37A.03(c) contemplates that the costs of mediation are to be borne equally by the parties. This is troublesome because many litigates, in particular personal injury plaintiffs, may not have the financial resources to contribute to the costs of mediation.
- Although the rule contemplates the establishment of the list of mediators, the rule does not set out the eligibility criteria for the persons to be placed on the list.
CBA News at 11
- Rule 37A.03(5) and .05(5) both contemplate additional parties attending the mediation, and in .05(5), specifically insurers. A concern has been raised that this may give such parties the opportunity to frustrate the process for their own needs. (CBA News at 11).
In practice, the rule is infrequently used. Most matters in civil litigation in Newfoundland and Labrador which go to mediation go there by the desire and consent of both parties, thereby circumventing the need to make application to do so.