WHAT IS JUDICIAL MEDIATION?
Judicial Mediation is the process by which the parties to a claim (the Plaintiff, the Defendant and other interveners) meet privately in the presence of a Territorial Court Judge and discuss ways to resolve the claim without the need for a trial. The parties work together, with the assistance of the judge but outside of court, to try to find a solution to a problem. To find a solution, each party must be open to discussion, and come prepared.
Judicial Mediation is confidential. This means that if the parties do not reach a settlement and the matter is set for trial, no reference can be made to the fact that Mediation took place or to anything that was discussed during the Judicial Mediation. It also means that the judge who presided over the Judicial Mediation cannot hear the trial.
There is no contestation of the result of judicial mediation because it is confidential and non-prejudicial.
WHY SHOULD I PARTICIPATE IN JUDICIAL MEDIATION?
Mediation is meant to be a speedy and inexpensive way to reach a resolution. Because both parties collaborate to reach an agreement, each gains something in the process, whereas if the matter goes to trial, there is a winner and a loser.
HOW DOES IT HAPPEN?
When a Plaintiff has filed a Statement of Claim at the Territorial Court Registry and a Defendant has filed a Defense, the Clerk of the Territorial Court sets the date for the Judicial Mediation and notifies the parties.
CAN I COME WITH SOMEONE?
Each party to the claim may come with a lawyer, a student-at-law or, with a judge's permission, a support person. Of course, each party may also come alone.
If a party is an organization such as a corporation or partnership, an officer of the organization, an employee, or another authorized individual may attend on the organization’s behalf.
In all cases, the individual appearing on behalf of a part must be fully authorized to participate in the mediation and settle the claim.
DO I BRING ANYTHING?
Each party must bring every document, photo or report that may be relevant. Typically these would be the same materials that you would bring to a trial; in other words, full disclosure of your case is necessary at a Judicial Mediation.
HOW DO I PREPARE FOR A JUDICIAL MEDIATION?
Being prepared means to be ready to discuss the strengths and weakness of your case, to determine what you are willing to offer to or to accept from the other party in order to resolve the claim; if a party is a company, the director should obtain clear instructions from the company’s board of directors with respect to means to resolve the claim.
In order for the Judicial Mediation to be fruitful, each party should come with an open mind and a desire to settle. Having an open mind means to be prepared to consider the other party’s point of view. [see Preparation Checklist]
WHERE DOES THE JUDICIAL MEDIATION TAKE PLACE?
It takes place in the community of the Northwest Territories where the Plaintiff and Defendant live. If the parties live in different communities, the Judicial Mediation may be set at a place or in a manner that a judge determines.
A party may apply to a judge for permission to participate by telephone by filing an Application to Judge (Form 40).
WHAT IF I CAN'T GO TO THE JUDICIAL MEDIATION?
The date of a Judicial Mediation may be changed with the consent of the other party by filing a Consent Order Form 5, or by a judge on application.
The party seeking the adjournment must contact the Clerk of the Territorial Court, who will then contact the other party to inform them of the need for an adjournment. If the other party consents to the adjournment, the clerk will suggest another date. Otherwise, a party may apply to the Judge, with notice to the other party, 7 days before the mediation session to adjourn it to another date. The judge will decide on the adjournment after having heard from both parties.
If a party cannot come to the Judicial Mediation and does not inform the other party and the judge, the judge may dismiss the claim or make any other appropriate order against the party who failed to attend, for example, setting a date for trial, or ordering that the absent party pays to the other party the costs incurred for the mediation.
WHAT HAPPENS IF A SETTLEMENT IS NOT REACHED?
The matter is set for trial, either in discussion with the judge presiding over the Mediation, or by the Clerk of the Court. If the Judicial Mediation failed because a party came unprepared, the Judge at trial may order this party to pay the costs of the mediation to the other party. However, the judge may also do any one of the following:
- Discuss any anticipated issues and evidence that will be required at trial;
- Discuss the procedure that will be followed;
- Order a party to give another party copies of documents by a specified date, or
- Allow another party to inspect and copy documents, or inspect any other things, by a specified date;
- If damage to property is alleged, order a party to permit a person chosen by another party to examine the property damage;
- Dismiss the claim if, after discussion with the parties and reviewing the filed documents, the judge finds that the claim discloses no triable issue, or finds that the claim is frivolous or an abuse of the court’s process;
- Make any other order for the just, speedy and inexpensive resolution of the claim.
WHAT HAPPENS IF A SETTLEMENT IS REACHED?
The judge may complete and issue a Settlement Conference Record (Form 13) and an Agreement (Form 12).
WHAT IF A SETTLEMENT IS REACHED BUT ONE PARTY FAILS TO COMPLY WITH THE TERMS OF AN AGREEMENT?
The claiming party may file an Affidavit of Non-Compliance (Form 15) and apply to a judge to cancel the Agreement and for entering judgment on the terms of the cancelled Agreement with costs.
- What are the important facts?
- What is really important to me in this dispute?
- What is my goal?
- What are the other party’s main concerns?
- How can I answer those concerns?
- What would be the best result possible?
- What would be the worst result possible?
- What am I prepared to offer to the other party to resolve the dispute?
- What am I prepared to accept from the other party to resolve the dispute?
- What is my breaking point?