Developed in 2012, the Judicial Mediation Program is a voluntary program available to litigants who have launched an appeal in a civil or family dispute. This program is not available in criminal appeals.
Mediation offers the parties an opportunity to come up with their own solutions, with the help of a judge. Parties are often able to agree on a satisfactory solution in less time, and at a lower financial and emotional cost.
Mediation has been successful in other Courts in Nova Scotia and across Canada. Like the Court of Appeal mediation program, these are based on the premise that the parties know their situation and their needs better than the lawyers and the presiding judge.
Normally, parties involved in a mediation process are represented by counsel, however, self-represented litigants will not be excluded. Litigants who cannot afford a lawyer, or who are representing themselves, have access to the services of a lawyer, free of charge, through the Canadian Bar Association – Nova Scotia Branch, which maintains a list of lawyers who have volunteered to provide their services at no cost.
Most legal disputes are resolved through negotiation. When parties cannot resolve their disputes on their own, they must seek the assistance of a third-party process to do so. The third-party process can be an adjudicative one, involving binding arbitration or litigation. The arbitrator or the Court imposes a solution to end the dispute. One or both of the parties may not be happy with the solution imposed in the adjudicative process. If the adjudicative process involves a tribunal or a court, there is usually a right of appeal. Judicial mediation at the appellate level can help address lengthy case backlogs, improve the quality of justice by assisting the parties in reaching their own resolution, and frequently saves money for the parties involved.
Litigants who will have, or should have, an ongoing relationship following an appeal can benefit from judicial mediation. This may include family law litigants, estate matters, shareholders disputes, or parties who have an ongoing business relationship. Both sides must consent to the judicial mediation process. However, the Court reserves the right to choose which cases will be approved for judicial mediation. Criminal cases, those raising constitutional questions, and any case where there are allegations of domestic violence do not qualify for judicial mediation.
Once a Notice of Appeal is filed, the parties may request judicial mediation. In addition, the Chambers judge, when setting the appeal down for hearing, may suggest the parties consider participation in a mediation process. A request for mediation may be made at any time during the appeal process; however, the earlier the request is made, the greater potential benefit to the parties involved. Once a request is made, any filing deadlines and other appeal requirements will be suspended.
Meeting rooms are available at the Law Courts, 1815 Upper Water St., Halifax, at no charge to the parties.
It is important to understand that mediation is simply negotiation facilitated by a third party. In this case, the third party is a Court of Appeal judge. Acting as a mediator, the judge has no power to impose a settlement or try to persuade one or both parties to agree to a resolution.
The mediator provides an opportunity for the parties to communicate constructively, focusing on their issues and interests, assisting the parties to explore options to resolve their dispute based on their underlying interests. The judge conducting the mediation can recommend solutions but never forces the parties to accept terms of settlement. Whenever a dispute is resolved, there will be a cooling-off period allowing the parties to reflect on the draft agreement before it is executed.
Individuals representing themselves are not automatically excluded from the program. However, parties involved in mediation are typically represented by counsel. The Canadian Bar Association (Nova Scotia Branch) has agreed to make available free legal advice to self-represented litigants who may wish to participate in the mediation program, as well as representation at mediation. For a list of lawyers offering pro bono services, visit the CBA-NS website.
The judge conducting the mediation will contact the lawyers representing the parties, or the parties directly. The parties must agree to the rules and procedure for the pending mediation session, and then timelines will be set to file materials. This ensures the judge conducting the mediation has a chance to review the relationship and issues between the parties beforehand. During the mediation session, the judge may wish to meet separately with the parties to try to better understand the impediments to a resolution. One or both parties may withdraw from the mediation at any time.
It is crucial for the success of mediation proceedings that they be strictly confidential. This is reinforced in the joint request for mediation and means any written or oral communications with the Court or between parties may not be disclosed.
With that in mind, the mediation is not held in a courtroom. There is no recording or transcript of the mediation sessions, and any notes taken by the judicial mediator will eventually be shredded. If the parties are unsuccessful in resolving their dispute, the judge who conducted the mediation will not sit on the panel that will eventually hear the appeal and will not disclose any aspect of the mediation process to the judges assigned to hear the appeal.