Court of Justice Civil Mediation Rules

( Consolidated up to 76/2023 ) ALBERTA REGULATION 271/97 Court of Justice Act COURT OF JUSTICE CIVIL MEDIATION RULES Table of Contents 1 Definitions 2 Referral to mediation 3 Duty to notify client 4 Scheduling of mediation 4.1 Rescheduling of mediation session 5 Attendance and representation 6 Confidentiality 7 Impartiality 8 Inadmissibility in other Court proceedings 9 Requirement as to good faith 10 Mediator ’ s immunity from suit 11 Exemption from mediation requirement 13 Notice of completion of mediation 14 Court ’ s power in case of non‑attendance 15 Time limit for mediation 16 Costs for further scheduling 17 Notice of completion of mediation 18 Closure where agreement performed 19 Forms 20 Application Definitions 1 In these Rules, (a) “Court” means the Alberta Court of Justice; (b) “mediated agreement” means any written agreement reflecting a consensus reached among the parties under these Rules as a result of a mediation session; (c) “mediation co‑ordinator” means a supervisor of the program; (d) “mediation session” means a negotiation session arranged by the program at which a mediator assists the parties to identify the issues and the parties’ interests, structures their discussions, facilitates communication among them and provides them with the opportunity to resolve their case in a mutually agreeable way with a view to settling the action and thereby obviating the need for a trial; (e) “mediator” means a person appointed by a mediation co‑ordinator as a result of the application of these Rules. (f) “program” means the Court of Justice Civil Claims Mediation Program administered by the Department of Justice. AR 12/2021 s3;216/2022;76/2023 Referral to mediation 2 (1) At any time after a dispute note is filed, the Court or a mediation co‑ordinator may refer the action for mediation, on giving notice to the parties or, where they are represented, to their lawyers or agents . AR 12/2021 s4 (2) On the request of any party, the Court or a mediation co‑ordinator may refer the action for a mediation session. Duty to notify client 3 On receipt of a notice under Rule 2 or 4.1(2), the lawyer or agent for a party must immediately provide a copy of the notice to that party. AR 12/2021 s5 Scheduling of mediation 4 (1) Where only one defendant is named in the action, a mediation session may be scheduled after a dispute note is filed. (2) Where 2 or more defendants are named, a mediation session may be scheduled after (a) a dispute note has been filed by one or more defendants, and (b) a period of 20 days has passed since the filing of the civil claim. Rescheduling of mediation session 4.1 (1) Subject to Rule 15, a mediation session scheduled under Rule 4 may be rescheduled (a) on a written request made to the mediation co‑ordinator by one of the parties, (i) with the written consent of the other parties, or (ii) if the mediation co‑ordinator is satisfied that the assigned date is unreasonably inconvenient to that party, or (b) on application to the Court. (2) If the request or application for rescheduling of a mediation session is approved under subrule (1), the mediation co‑ordinator must give notice of the rescheduled mediation session to all the parties or, if the parties are represented, to the lawyers or agents of the parties, as the case may be. AR 12/2021 s6 Attendance and representation 5 (1) All the parties receiving notice under Rule 2(1) or 4.1(2) must attend at a mediation session. (2) If a party is incorporated, the corporation must be represented by a director, officer or employee of the corporation who has full knowledge of the facts and unrestricted authority to resolve the action on the corporation’s behalf. (3) A lawyer or agent may attend with, but not in place of, a party at a mediation session. (4) Other persons may attend with the consent of all the parties and the mediation co‑ordinator or the mediator. AR 12/2021 s7 Confidentiality 6 (1) Whatever is said at a mediation session is confidential if the parties have agreed that it is to be kept confidential. (2) Subrule (1) does not apply (a) to anything contained in a mediated agreement, (b) to evidence that is admitted under Rule 8(6)(b), or (c) to any threats of bodily harm made during or in connection with a mediation session. AR 12/2021 s8 Impartiality 7 A mediator must act impartially. AR 12/2021 s9 Inadmissibility in other Court proceedings 8 (1) Anything said at a mediation session is inadmissible in any proceeding before the Court. (2) Any document or electronic record prepared or generated for the purposes of a mediation session is privileged in the hands of the person to whom it belongs. (3) Neither the mediator nor any other person present at the mediation session may be subpoenaed or otherwise required to testify or to produce records or notes relating to the mediation in any proceeding before the Court. (4) A mediation session may not be recorded , nor transcripts of it kept. (5) Any record of what took place at a mediation session is not admissible before the Court, unless the parties agree in writing. (6) This Rule does not (a) apply to a mediated agreement, (b) prevent the admission of factual evidence relating to the cause of action that would be admissible apart from subrule (1) or (2), or (c) apply to any threats of bodily harm made during or in connection with a mediation session. AR 12/2021 s10 Requirement as to good faith 9 All parties to a mediation session and, if applicable, their representatives must negotiate in good faith. Mediator ’ s immunity from suit 10 (1) No proceedings lie against a mediator or His Majesty in right of Alberta for anything done or not done while discharging or purporting to discharge responsibilities under these Rules. (2) A mediator has the same immunity from civil suit as has a judge of the Court. AR 271/97 s10;218/2022 Exemption from mediation requirement 11 Notwithstanding anything in these Rules, any party may apply to the Court, on at least 2 days’ notice being given to all the other parties, for an order exempting the parties from the application of these Rules, and the Court may, if it considers that there is good and sufficient reason to do so, make an order to that effect setting out that reason. 12 Repeal AR 12/2021 s11. Notice of completion of mediation 13 Where the parties have completed a mediation session or any party, a mediation co-ordinator or the mediator has terminated the mediation session, all the parties must receive a notice of completion of mediation. AR 12/2021 s12 Court ’ s power in case of non-attendance 14 (1) Where a party did not attend a scheduled mediation session or attended without the attendance of any person required by Rule 5, a mediation co‑ordinator or designate must complete a certificate of non‑attendance at mediation. (2) Following the completion of the certificate and on application by any party on at least 7 days’ notice to all the other parties, the Court may make any one or more of the following orders: (a) an order that further mediation occur, on any terms that the Court considers appropriate; (b) an order that the pleadings of the non‑complying party be struck out, unless that party satisfies the Court there was a reasonable excuse for the non‑attendance and that striking out the party’s pleadings would be inequitable; (c) an order that the action proceed to trial; (d) such order as to costs as is appropriate in the circumstances; (e) such other order as is appropriate in the circumstances. (3) A mediation co-ordinator may, with the consent of all the parties, reschedule a mediation session if a party did not attend a scheduled mediation session or attended without the attendance of any person required to attend or represent under Rule 5. AR 12/2021 s13 Time limit for mediation 15 A mediation session must occur within 4 months after the filing of the last dispute note filed in the action, unless the Court extends that period, which extension may be made before or after the end of that 4‑month period. AR 12/2021 s14 Costs for further scheduling 16 If a mediation does not proceed because of the non‑attendance of one or more of the parties or of a representative of a party, the Court may, on application to it or at trial, order each non‑attending party to pay costs of up to $250 to the other parties, with the costs being prorated among all the other parties if more than one. AR 12/2021 s15 Notice of completion of mediation 17 If a party seeks to have a trial date fixed, the party must, with the request, file with the Clerk of the Court a notice of completion of mediation and, if the party considers that a mediated agreement has been breached, a written statement to that effect. Closure where agreement performed 18 If a mediated agreement has been fully performed, the parties must ensure that (a) a notice of withdrawal of the action is or has been filed, or (b) consent judgment is or has been given. AR 12/2021 s16 Forms 19 All notices, certificates and other documents referred to in or used for the purposes of these Rules are to be in the form required by the Court. Application 20 These Rules apply in respect of a judicial district or a particular court facility only if the Chief Justice of the Court has designated that district or facility for the purposes of these Rules. AR 271/97 s20;76/2023