Clarification Note—Mediation under Sections 68 and 170.1 of the Bankruptcy and Insolvency Act

There has been some concern recently about a potential influx of mediation requests being filed with the Office of the Superintendent of Bankruptcy and how staff will handle them.

The purpose of this note is to clarify that a mediation held pursuant to subsections 68(6), 68(7) or 170.1(1) of the Bankruptcy and Insolvency Act may, at the discretion of the mediator, be held by telephone conference call or by means of any other communication facilities that permit all persons participating in the mediation to communicate with each other. Rule 105(5) of the Bankruptcy and Insolvency General Rules (the Rules) does not require the mediator to conduct every mediation with the parties physically present.

Factors to be considered by the mediator in choosing to conduct the mediation by telephone conference call or by means of any other communication facilities include:

  • an agreement has been reached by the parties and the mediator has received a signed mediation settlement agreement (Form 63) in advance of the scheduled mediation; and/or
  • it would be a more cost-effective and time-effective method of proceeding and no party to the mediation has a reasonable objection.

When an agreement is reached by the parties prior to the mediation, the mediator shall still conduct the mediation at the time and place set for mediation in the Notice of Mediation (Form 61) and in accordance with the procedures set out in Rule 105. This allows the mediator to ensure that the mediation settlement agreement (Form 63) is understood and agreed upon by all the parties to the mediation. If an amendment to the agreement is required, the mediator shall make the necessary arrangements to have the mediation settlement agreement signed by the parties at, or immediately following, the mediation. The mediator shall send copies of the final, signed agreement to the Division Office and the parties in accordance with Rule 105(18).