Mediation allows parties to:
- meet before the hearing
- better understand the issues
- take an active role in resolving the dispute
- repair relationships
- identify common interests
- settle the issue or dispute without having a solution determined by the board
- solve the problem without going to a board hearing
- be more cost effective
Mediators have training and experience in mediation and surface rights. They create a safe environment, encourage discussion, and help the parties find solutions. They do not take any side and cannot make decisions about the dispute. The mediator:
- may contact you to explain the mediation process and address any questions you may have
- is neutral, guides discussions impartially and gives the parties feedback on their ideas
- encourages parties to look at the pros and cons of the different options for resolving the dispute
- helps the parties prepare a Mediation Memorandum of Agreement to sign if they reach a settlement
Step 1. Apply for mediation
To request mediation, contact the Surface Rights Board office by phone or email.
You may also send the Surface Rights Board a completed Request for Mediation Form (PDF, 48 KB).
Step 2. Preparing for mediation
Parties with authority to resolve all matters must attend and participate in the Mediation. If a party is a corporation, the corporate representative must have full knowledge of the matter and unrestricted authority to resolve the dispute.
The parties should bring any information and documents to mediation that they think will be helpful to support their position on any issues in dispute. Documents exchanged are confidential.
A lawyer is not required but may attend if you wish.
Step 3. At mediation
The purpose of mediation is to reach a resolution of all issues, or to resolve as many issues as possible, with the assistance of one Member of the Surface Rights Board acting as the mediator. At mediation, all parties try to reach an agreement to settle their dispute. At the beginning of the mediation, the mediator will set ground rules and outline the procedure to be followed which may include the following:
- brief overview by each party of what they view as the issue(s) in dispute and their position concerning same
- discussion between the parties of the basis for their position
- confidential meetings of the mediator with each party
- discussion of possible methods to resolve the dispute
- decision by the parties whether to agree to the proposed methods of resolution
Unlike a hearing, mediation does not include the public. The mediation process is confidential. Information provided at the mediation is without prejudice and cannot be used for any other purpose or referred to at a Hearing or subsequent proceedings.
In the course of the mediation, a party may meet privately with its representative(s), with or without the mediator. If the mediator meets privately with a party, anything said to the mediator by the party or its representative will remain confidential unless the parties waive the confidentiality.
The only documents which will be kept by the Surface Rights Board from mediation will be:
- a Mediation Agreement
- a Report of Mediation
- a Memorandum of Agreement (if entered into by the parties)
All other documents and notes will be destroyed.
Discussions about costs
The parties may decide to discuss costs at the mediation. Agreements about costs may be included in the settlement agreement.
If the parties fail to reach an agreement about costs the issue may be addressed at a Board hearing. Pursuant to subsection 39(1) of the Surface Rights Act, the costs of and incidental to the proceedings under this Act are in the discretion of the Board.
Factors relevant to discussions about costs include:
- the reasons for incurring costs
- the contribution of counsel and experts retained
- the conduct of a party in the proceeding
- whether a party has unreasonably delayed or lengthened a proceeding
- the degree of success in the outcome of a proceeding
- the reasonableness of any costs incurred
Step 4. After mediation
If the parties reach a settlement, the mediator helps them prepare a written Mediation Memorandum of Agreement. This document outlines what each party has agreed to do to resolve the dispute.
If mediation does not resolve the issues, then the Surface Rights Board may schedule a hearing. The mediator who guided the mediation will not be assigned to hear the matter nor will they discuss the mediation process with the presiding panel. The mediator cannot be compelled as a witness in any further proceedings.
Once the mediation is over, the parties may have a better understanding of the issues and be more prepared at the hearing.
For more information, see Oral hearings for surface rights disputes.