Practice Direction No. 14

Mediation

Notice of Amendment:
Effective January 14, 2025, Practice Direction No. 14 issued on October 12, 2018, is revoked and replaced by Practice Direction No. 14 found below.

1. Rules 52, 53 and 54 of the Specific Claims Tribunal Rules of Practice and Procedure, SOR/2011-119, set out requirements for mediation by the Tribunal or by a private mediator. This Practice Direction is in addition to those requirements.
2. The Tribunal has all the powers, rights and privileges that are vested in a superior court of record based on subsection 13(1) of the Specific Claims Tribunal Act, SC 2008, c 22, and a mandate to resolve matters in a just, expeditious and cost-effective manner. In an effort to resolve claims in the most expeditious and cost-effective manner possible, the Tribunal encourages the parties to claims currently before it to participate in mediation at any stage of the proceedings. Below is a framework for the Tribunal’s facilitation of mediation.

Mediator

3. Upon request of the parties, the Tribunal may offer mediation by a member of the Tribunal. A member who mediates a claim will not subsequently preside over a hearing of that claim.
4. The Tribunal member assigned to the claim may serve as mediator if the parties consent to another Tribunal member presiding over the hearing of the claim, should the mediation not lead to a final resolution.  
5. Without limiting the generality of paragraph 3 of this Practice Direction, a Tribunal member that serves as a mediator of any or all issues in the validity phase of the claim may preside over the compensation phase without the consent of the parties.
6. This Practice Direction does not prevent the parties from appointing a private mediator without leave of the Tribunal.

Objective of Mediation

7. The objective is to establish a memorandum of understanding between the parties that allows for a final resolution of the claim or allows for the resolution of issues within the claim.

Preparatory Meeting

8. The Tribunal may convene a meeting by teleconference with the parties to assist them in preparing for mediation by a Tribunal member.
9. At the preparatory meeting, the Tribunal will consult with the parties:
   1. to identify the list of issues for mediation;
   2. to determine whether there are issues for which expert reports may be required or exist and could be used by the parties or a party; and
   3. to discuss whether the subject matter of a report would be suitable for the joint appointment of an expert by the parties or the retention of an expert by the Tribunal.

Preparation for Mediation

10. In advance of mediation, the parties must enter into a mediation agreement in a form satisfactory to the parties and the mediator, that will provide for confidentiality from the participants. A “Mediation Agreement” template is available on the Tribunal's website.

Representation at Mediation

11. Each party must appoint a representative to attend the mediation who has the authority to enter into a memorandum of understanding that provides a final settlement of the claim or resolves issues within the claim. This is subject to any necessary internal processes required to enter and finalize a binding agreement.

Mediation Briefs

12. The parties must, unless the Tribunal directs otherwise, file mediation briefs with the Tribunal not less than 14 days before the date scheduled for the mediation.
13. The mediation briefs must include the following:
    1. The names and roles of the individuals who will attend the mediation.
    2. Identification of the factual and legal issues on which the parties are in agreement. 
    3. Identification of the factual and legal issues in dispute and the position and interests of the party making the statement. 
    4. Where the claim was (wholly or partially) accepted for negotiation and filed with the Tribunal due to an inability to reach a settlement, a general description of the unresolved issues that resulted in the failure to settle. 
    5. Any documents that a party considers of central importance to the claim.

Mediation Materials, Expert Reports and Proceedings Before the Tribunal

14. The mediation itself, conversations during the mediation and any materials disclosed by a party during the preparation or conduct of the mediation are confidential, unless otherwise required by law or permitted by the agreement of the parties. The exceptions to this confidentiality are as follows: 
    1. A party may apply, under subrule 4(1) of the Specific Claims Tribunal Rules of Practice and Procedure, SOR/2011-119, to vary Rule 54 to permit, without the consent of the other party or parties, to introduce into evidence its own expert report, provided that it waives privilege in relation to the report.
    2. A party may, in proceedings before the Tribunal, apply to the Tribunal under subrule 4(1) of the Specific Claims Tribunal Rules of Practice and Procedure, SOR/2011-119, for directions with respect to the admissibility in evidence and confidentiality of portions of or an entire expert report.

Caucusing

15. The mediator may, after informing the parties of their intention to do so, communicate with each party separately. The mediator shall not disclose to any party information received from another party during the mediation without the consent of the party that provided the information.

Requesting Tribunal Assistance

16. If, at any time during the mediation process, the parties believe that the Tribunal may be of assistance, they are encouraged to contact the Tribunal to request a case management conference.

Honourable Victoria Chiappetta, Chairperson
Specific Claims Tribunal