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There are two sessions that parties must attend before a civil King’s Bench matter reaches trial. These are the mandatory mediation session and the pre-trial conference. The purpose of these sessions is to encourage settlement and smooth out the process.
If a party does not attend mediation, the court can strike out their claim or defense. The court can also order further mediation sessions at any time.
Mandatory mediation takes place after the parties have filed their claim and defence. The session must occur before any other steps are taken unless a court orders otherwise. The Dispute Resolution Office arranges for the session. No judge attends the mediation, just the parties, their lawyers, if they have one, and a trained mediator.
The mediator will meet with the parties to discuss the issues and identify options for resolving your dispute. You will have the chance to work out a solution that is agreeable to both sides in a less adversarial setting than court. You are also in control of the terms of that agreement or final outcome.
Evidence directly arising from what was said at mediation also cannot be used in court. For example, if you admit that you did something, the other party cannot say at trial that you admitted to it in mediation.
If the mediation is successfully completed, the mediator will file a certificate of compliance with the court. This allows the matter to proceed further along the court process.
Mandatory mediation does not apply to family law proceedings. In that case, there is a different process called family dispute resolution.
You must attend the pre-trial conference.
If your case is going to trial, there will first be a pre-trial conference. After mandatory mediation occurs, the parties can ask to have the case set down for a pre-trial conference.
If the parties agree, they can file a joint request using Form 4-11 of the King’s Bench Forms. The parties must agree that they are ready for trial, that they have made efforts to settle and that they attended the mandatory mediation. The parties must estimate how much time is needed for pre-trial and trial. Each party must also estimate how many witnesses they will call at trial.
If the other party will not sign a joint request, you must wait 20 days after they refused. If, after this time, they still have not signed the joint request or explained why they will not sign it, you can ask the local registrar to set a date. You must provide the same information as above as well as a certificate that the other party refused the joint request.
The goals of a pre-trial conference are:
The pre-trial conference is conducted by a judge who will not be the judge at the trial. What is said at the pre-trial conference is privileged. This means that things that are said cannot be brought up at trial. At pre-trial, the judge cannot make any orders. Typically, the judge will ask each party or their lawyer to summarize the issues and their position on these issues. The judge may speak to each side separately and state their view of the issues and the likely outcome if the case was to go to trial.
At least ten days before the pre-trial conference, both parties must file a pre-trial brief and give a copy of it to the other party. The pre-trial brief must:
The pre-trial brief can also include a proposal to settle the issues.
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