In Matsqui First Nation v. Canada (Attorney General), 2015 BCSC 1409, Mr. Justice Kent recently refused to exempt the Crown from attending a mediation triggered by a Notice to Mediate served by the First Nation which is asserting Aboriginal fishing rights.
Our colleagues at Fasken Martineau have published an excellent blog post summarizing this case and highlighting its significance for mediation in the province. The decision sets a high bar for a party seeking an exemption from the Notice to Mediate (General) provisions and includes some encouraging language around the importance of civil mediation. In reaching this decision, Mr. Justice Kent refers to his personal experience with mediation in more than 30 years of practice before joining the bench and concludes:
The beauty of mediation lies in its confidentiality and flexibility. With the assistance of a skilled mediator, the parties are free to speak to each other directly and to frankly express their concerns and interests without fear of prejudicing the litigation should the matter not settle. That is to be encouraged. Empathy and apology can and often does play a powerful role. Seemingly intractable positions become less so. The legal issues framed in the pleadings frequently do not reflect the real interests or concerns motivating the litigants. Creative remedies not available to the court can be forged to bridge differences. Important relationships can be repaired.
-Mr. Justice Kent [at para 18]