CHAPTER 12: NEGOTIATIONS, MEDIATION, AND HEARINGS Emond Montgomery Publications 1

Chapter 12: Negotiations, Mediation, and Hearings Negotiations Implementing a Negotiated Settlement Mediation Exchanging Information Forcing Witnesses to Attend a Hearing: The Summons The Hearing Informal Hearings Disputed Claims and Formal Hearings Emond Montgomery Publications 2

Negotiations Parties can sometimes resolve disputes and applications through negotiations that lead to settlement The range of matters that can be settled includes: the amount of rent in arrears; the payment of schedule for arrears; the amount of rent abatement for maintenance problems; and the amount of a rent reduction for reduced or discontinued services and facilities The key to successful negotiation: know the strengths and weaknesses of your client’s case know the range of possible and likely outcomes from a hearing Emond Montgomery Publications 3

Implementing a Negotiated Settlement Once a settlement has been reached, it can be implemented by the applicant’s withdrawing the claim or by a consent order of the board On some occasions a hearing can be adjourned to a date in the future, or even without a new date However, the board is reluctant to allow open-ended delays Once the settlement has been implemented, the application is withdrawn or dismissed on consent Emond Montgomery Publications 4

Mediation Mediation is negotiation with the assistance of a neutral person called a mediator At various district offices the board has a number of mediators who assist parties in reaching settlements A mediator is particularly helpful for an unrepresented party One role of the mediator is to balance the relative power of the parties, so that an unrepresented party who may not be prepared to negotiate with a represented party’s agent or lawyer may be prepared to negotiate with the assistance of a mediator Mediations usually occur at the time set for the hearing Emond Montgomery Publications 5

Exchanging Information If negotiations are not attempted or do not produce a settlement and it appears that the application will be defended, the parties’ representatives should exchange information about the evidence they will call at the hearing, so that there are no major surprises Confirm the facts admitted in writing If the facts are insufficient, you can ask the board to direct the opposing party to: provide further details of the claim or dispute file a particular document or documents or other evidence necessary for the determination of the issues (s. 201(1)(d)) Emond Montgomery Publications 6

Forcing Witnesses to Attend a Hearing: The Summons Some witnesses attend a hearing willingly Others will only attend if required to That includes officials like property standards inspectors The board has a form for making the request for a summons to require a witness to attend On the form the party must state the: name of the witness witness’s address witness’s relevant evidence documents that the party wants the witness to bring Emond Montgomery Publications 7

Forcing Witnesses to Attend a Hearing: The Summons Representatives of parties are expected to prepare a draft summons stating: the hearing time the date the hearing location the witness’s name and address the documents the witness is to bring to the hearing The party who has obtained the summons must give a copy of it to the witness The party must also be ready to pay the witness “conduct money” Emond Montgomery Publications 8

The Hearing Hearings are usually oral and conducted in person They are scheduled to start at specific times during the day The hearing is subject to the Statutory Powers Procedure Act (SPPA) (s. 184(1)) The board may make its own inquiries, but usually leaves the parties to bring the evidence to support their case (ss. 201(1)(a) and (c)) Alternatively, the board may hold a written hearing an electronic hearing (by telephone or video-conference) Emond Montgomery Publications 9

Oral Hearings—Informal When at least one of the parties is unrepresented, the hearing before the board tends to be relatively informal Depending on the issue, the adjudicator may strongly suggest mediation For example a non-payment of rent case If the parties and the mediator cannot work out a mutual agreement, the hearing would proceed Emond Montgomery Publications 10

Disputed Claims and Formal Hearings If there is a dispute about the facts, the adjudicator will ask the applicant to present his or her case Before the applicant testifies, the adjudicator usually asks the applicant whether he or she wishes to swear an oath or affirm that his or her evidence is true The adjudicator reads either the oath or the affirmation, and the witness responds “yes” Emond Montgomery Publications 11

Disputed Claims and Formal Hearings Formal hearings consist of: the applicant’s case for each witness examination-in-chief cross-examination re-examination adjudicator’s questions the respondent’s case the applicant’s reply evidence (if any) Emond Montgomery Publications 12

Disputed Claims and Formal Hearings After the witnesses have given their evidence, the parties usually make “submissions” Submissions are also called: summation summing up argument Submissions are the time to set out: How the facts tie together and the implications of proven facts How the law applies to the proven facts After the submissions Requesting written reasons Emond Montgomery Publications 13