These rules are about the facilitation process. They include rules about how facilitation works, what a non-binding neutral evaluation is, agreements during facilitation, and preparation for the tribunal decision process.
Support in Facilitation
83)Parties in the facilitation process receive support from a tribunal officer or member acting as a facilitator.
The Facilitation Process
84) The facilitator will direct
a) processes to be followed, including the types of communication the parties will use,
b) steps to be taken, and
c) timelines to be followed.
85) The facilitator can make adjustments or modifications to the facilitation directions at any time during facilitation.
Agreements in Facilitation
86) If the parties reach a resolution by agreement on any or all of the claims in their dispute, they can
a) ask the tribunal to make a consent resolution order to make the terms of their agreement an order of the tribunal, and
b) pay the required fee.
87) The agreement that is the subject of a requested consent resolution order must set out
a) the terms of agreement among the parties, and
b) any other information the parties or the facilitator thinks should be included.
88) If the agreement involves an adult with impaired mental capacity, the tribunal must review the agreement to ensure that it is fair, reasonable, and in the incapable adult’s best interests.
89) If the agreement involves a child, the provisions of the Infants Act apply to the agreement and must be met before the parties request a consent resolution order.
90) If the tribunal issues a consent resolution order, it becomes a final decision of the tribunal.
91) If the parties agree to resolve some, but not all, claims by agreement, the facilitator can record their draft agreement based on the terms agreed upon by the parties, and provide a draft consent resolution order to a tribunal member
a) immediately, or
b) along with the Tribunal Decision Plan.
How Facilitation Works
92) During facilitation, the facilitator can review and approve all communications between the parties before they are delivered.
93) A facilitator can communicate privately with one party at a time for the purposes of facilitated dispute resolution.
94) The facilitator can direct any party in a dispute to provide to the tribunal and to every other party
a) any information and evidence, including explanations of that information or evidence,
b) information about a party’s ability to pay an amount reached by agreement or ordered by the tribunal,
c) responses to another party’s information and communications, and
d) that party’s position on any proposed resolution of a claim in the dispute.
95) At any time during facilitation, the facilitator can
a) recommend that a party take steps to add a party to the dispute,
b) permit a party to add, revise, or withdraw a claim to the dispute, and
c) determine the steps required to add a party or claim, including who should pay any costs associated with those steps.
96) During facilitation, the facilitator can refer any matter requiring a decision or order to a tribunal member, including a party’s non-compliance with directions.
Non-Binding Neutral Evaluation
97) At any time during facilitation, the facilitator can provide
a) a non-binding neutral evaluation of the claims including any representations, demands, offers, information or evidence relating to a claim, or
b) views on how the tribunal would likely resolve the dispute if it were to be resolved by the tribunal decision process.
98) A facilitator’s non-binding neutral evaluation is covered by the confidentiality and non-disclosure rules.
If the Parties Consent to Facilitator Resolving by Decision
99) If the parties consent and if the facilitator is a tribunal member, the facilitator can, at any time during facilitation
a) resolve any issue or claim by final decision, and
b) include an order giving effect to that final decision.
End of Agreement-based Activities and Start of Tribunal Decision Preparation
100) If the facilitator decides the parties cannot resolve their dispute by agreement, the facilitator will
a) inform the parties that activities aimed at finding a resolution by agreement are over, and
b) ask the applicant to pay the tribunal decision fee.
101) If the applicant does not pay the tribunal decision fee, a respondent can pay it.
102) If no party pays the tribunal decision fee within the time period set by the facilitator, the tribunal can
a) refuse to resolve the dispute,
b) proceed to hear the dispute, or
c) dismiss the dispute.
103) If a party pays the tribunal decision fee, the process to prepare the dispute for a tribunal decision will begin.
Facilitator Support for Tribunal Decision Preparation
104) To prepare the dispute for a tribunal decision, the facilitator can support the parties in
a) identifying and narrowing the claims or issues that will be decided in the tribunal decision process,
b) identifying the facts relevant to resolving the claims or issues in the tribunal decision process, and
c) taking any other steps to prepare for the tribunal decision process.
Tribunal Decision Plan
105) To prepare for the tribunal decision process, the facilitator will give the parties a Tribunal Decision Plan, which sets out
a) required information, and
b) steps and timelines to prepare the dispute for the tribunal decision process.
106) The facilitator can direct the parties to complete the steps in a Tribunal Decision Plan, including
a) providing information, evidence and records relating to any claims or issues,
b) providing information and explanations relating to their own or to another party’s positions and submissions,
c) providing an agreed statement of facts,
d) exchanging all of the information and evidence required by the plan with the other parties,
e) responding to any submissions or evidence provided by other parties, and
f) providing the dates for completing any of the steps required by the plan.
107) Once the facilitator has given the Tribunal Decision Plan to the parties, they cannot add any other party or claim without permission from the tribunal.
108) The tribunal may at any time order that a party be added to the dispute and make directions as to the process to be followed.
109) If a party does not comply with the Tribunal Decision Plan the tribunal may do any of the following
a) the tribunal can decide the dispute relying only on the information and evidence that was provided in compliance with the Tribunal Decision Plan,
b) the tribunal can dismiss the claims brought by a party that did not comply with the Tribunal Decision Plan, and
c) the tribunal can require the non-complying party to pay to another party any fees and other reasonable expenses that arose as a result of a party’s non-compliance with the Tribunal Decision Plan.
110) Facilitation ends when the facilitator determines that the Tribunal Decision Plan is complete.
111) The tribunal can decide a default application without giving the parties a Tribunal Decision Plan.
How to Summons a Person to Provide Evidence
112) If a party or the tribunal requires a person to provide evidence or to produce a record or other thing in that person’s control, the party or the tribunal can issue a summons by
a) following the instructions and completing the required steps on the Summons Form,
b) providing the summons according to the instructions in the Summons Form, and
c) including with the summons the fees shown on the Summons Form.
113) Expert opinion evidence will only be accepted from a person the tribunal decides is qualified by education, training, or experience to give that opinion.
114) An expert must state his or her qualifications in any written expert opinion evidence or other reports.
115) The tribunal can
a) direct a party to obtain expert opinion evidence, or
b) direct multiple parties to retain a joint expert to produce expert opinion evidence.
116) If the tribunal is directing a party to obtain expert opinion evidence, it can
a) decide who must pay for it, and
b) include the cost of that expert opinion evidence as an expense a party is ordered to pay to another party at the end of the tribunal decision process.
117) An expert giving evidence to the tribunal is there to assist the tribunal and not to advocate for any side or party in a dispute.
118) A party providing written expert opinion evidence to the tribunal must provide a copy of it to every other party by the deadline shown in the Tribunal Decision Plan, together with the expert’s invoice and any correspondence with that expert relating to the requested opinion.