Mandatory Mediation is in Ontario to Stay

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Title: Mandatory Mediation is in Ontario to Stay.

Thesis: Mediation is an effective and fair alternative dispute resolution mechanism to adjudication in non-family civil matters. Its court-based mandatory implementation in Toronto, Ottawa, and Windsor has been satisfactory and should be extended to the rest of the regions of Ontario.

Ricardo Alcolado Perez

Student Number: 210039048

The Role of ADR in the Civil Litigation Process

GS Law 6703 6.0

Professor D. Paul Emond

Adjunct Professor Leslie H. Macleod

TABLE OF CONTENTS

  1. INTRODUCTION 3
  2. THE USE OF THE MEDIATION PROCESS MODEL AS 6

A DISPUTE RESOLUTION MECHANISM AS OPPOSE

TO THE ADVERSARIAL/ADJUDICATIVE MODEL

  1. THE MANDATORY MEDIATION PROGRAM IN 10

TORONTO AND OTTAWA. RESULTS AND

CHALLENGES.

MAJOR FINDINGS, CONCERNS AND                                        12

RECOMMENDATIONS

TIMING                                                                                              13

16

LEGAL COSTS

IMPACT IN THE OUTCOME                                                        18

22

POWER IMBALANCES

CONFIDENTIALITY                                                                       23

25

SELF-DETERMINATION

THE VOLUNTARY/MANDATORY DICHOTOMY                   26

  1. CONCLUSIONS 29

1.      INTRODUCTION

The use of mediation as a mechanism to resolve disputes is not a new phenomenon in North America. Its origins go back to the American Colonial times where resolution of disputes within the community often involved a third party who “intervened in a dispute to aid the principals in reaching an agreement” and who generally operated within ecclesiastical society[1].

Before its recent popularity as part of the ADR movement, it had been an integral part of statutory schemes governing collective bargaining. During the 20th Century, mediation-type mechanisms were common in labour disputes in the United States. Nowadays, mediation has extended its application as a tool of social justice and personal empowerment to almost every area of law. As Colleen M. Hanycz* asserted “As mediation continues to reinvent itself into the 21st Century, its ties to our systems of traditional adjudication are ever strengthened. Clearly, the poster child of the ADR movement has left its labour relations roots far behind”.[2]

The application of mediation as a dispute resolution mechanism has flourished in the context of private civil disputes where it has been associated with provincial court-connected programs. Court-connected mediation has had a rapid expansion in the United States as a more efficient alternative to the adversarial/adjudicative models, and this process has influenced similar approaches in other countries like Canada, Western Europe and Australia/New Zealand.[3] Since its advent as a tool of social justice and personal empowerment, mediation has become

increasingly institutionalized, now finding itself closely aligned with traditional legal systems, professionals and norms.

In Canada court-connected mediation is growing in its use. Saskatchewan was the first jurisdiction to implement mandatory court-connected mediation, with its pilot program commencing in 1994. In the same year, Ontario established its Civil Justice Review, structured as a collaborative initiative of the Ontario Court of Justice (General Division) and the Ministry of the Attorney General. In January 1999, a pilot project was introduced that operated to amend Ontario’s Rules of Civil Procedure[4] (Rule 24.1) by mandating early mediation for all non-family, civil case-managed cases filed in the Ontario Superior Court of Justice in Ottawa and Toronto. It included a provision that the Rule would sunset on July 4, 2001 and it constituted an Evaluation Committee of members of the bench, bar, mediation community, and the public to oversee a thorough and independent 23-month evaluation of the Rule.

The   Evaluation   Committee  released  its  report   on  March  12,  2001,[5]   based  on   which  the

Mandatory Mediation Program was permanently implemented in Ottawa and Toronto. The Program was extended to Windsor on December 31, 2002.

Throughout the last decade, mandatory mediation has had a massive impact on the way litigation is conducted in the jurisdictions it has been implemented. With the recent amendments to the Rules brought about by O. Reg. 438/08 (in force January 1, 2010) the application of rule 24.1 is expanded to include all cases commenced in Ottawa, Toronto or Essex and is no longer limited to case managed or simplified procedure cases.

This paper examines the advantages that mediation, as a mechanism of dispute resolution, offers litigants, the justice system, and society in general, over other models in the civil litigation context. It also analyses the results of the mandatory mediation program in Toronto and Ottawa and the challenges that this process faces in its evolution. The author concludes that, although not exempt of deficiencies and risks, this mandatory mediation program constitute a valuable alternative to the adjudicative model in which it takes place and therefore its implementation should be extended to the rest of the Province of Ontario.

2.                   THE USE OF THE MEDIATION PROCESS MODEL AS A DISPUTE RESOLUTION MECHANISM AS OPPOSE TO THE ADVERSARIAL/ADJUDICATIVE MODEL

As Christopher Moore describes it:

Mediation is the intervention into dispute or negotiation by an acceptable, impartial and neutral third party who has no authoritative decision-making power to assist disputing parties in voluntarily reaching their own mutually acceptable settlement of the issues in dispute.[6]

The mediator … works to reconcile the competing interests of the two parties. The mediator’s task is to assist the parties in examining their interests and needs and in negotiating an exchange of promises and the definition of a relationship that will be mutually satisfactory and will meet the parties’ standards of fairness.[7]

Because the mediator cannot determine the dispute, the parties can openly discuss not only their rights-based arguments but also their interests and needs. While the adjudicative system is highly technical and rule-bound, mediation constitutes a co-operative and interests-based approach to conflict resolution where the parties have the flexibility to craft a process that suits their particular needs. The aim is to find a “win-win”, rather than a “win-lose”, result that is

characteristic of both litigation and arbitration.[8]

The fact that the outcome of mediation will not depend entirely on the legal rights-based arguments, facilitates the settlement of the dispute at early stages, reducing legal costs, as well as the high degree of uncertainty as to outcome. Even when full settlement is not reached during the mediation sessions, it may enable the parties to at least narrow the issues to be litigated.[9]

Furthermore, the parties are directly and personally involved in the discussion that take place in the mediation session, whereas adjudicative models tend to minimize direct contact between the parties involved in the conflict. Unlike the litigation model where communication between the parties is forbidden and restricted to pre-established categories of rights at issue in the court documents, the mediation model promotes party-to-party communication and provides the parties with the opportunity to get their message through and clarify misperceptions. Parties are active participants in the process and play an important role in asserting their wishes regarding both the eventual outcome and important process decisions. Hence, when the parties reach a voluntary, uncoerced agreement they are more likely to fulfill their compromises. Rule 24.1.11 (1) provides that the parties, and their lawyers if the parties are represented, are required to attend the mediation sessions unless the court orders otherwise.

Mediation is particularly advantageous in cases where there are ongoing relationships. Unlike the adversarial/adjudicative model, where parties are set to fight their cases against each other with all their strengths until the last consequences, in mediation parties work together to achieve a consensual agreement. Mediation, thus, preserves and sometimes enhances the relationship between the parties. As noted by L. Nader and L. Singer:

[l]awyers should spearhead the effort to experiment with alternative forums to courts for resolving disputes between people whose relationships are ongoing and thus subject to mediated solutions, reserving for courts the one-shot, win- lose type of dispute, such as the adjudication of guilt in the criminal law or test cases that attempt to define new legal rights and relationships.[10]

Of course, in the event that a final binding agreement is not reached, the parties can proceed to litigate their case, while the communications that took place in mediation are subject to

settlement privilege.

The guarantee of confidentiality permits encourages [participants] to discuss matters in an uninhibited fashion… . If participants cannot rely on the confidential treatment of everything that transpires during these sessions then [they] of necessity will feel constrained to conduct themselves in a cautious, tight-lipped, non-committal manner more suitable to a poker game than to adversaries attempting to arrive at a just resolution of a civil dispute.[11]

Rule 24.1.14 of the Rules of Civil Procedure provides that, “All communications at a mediation session and the mediator’s notes and records shall be deemed to be without prejudice settlement discussions”.

Because of settlement privilege, the parties can freely discuss their case. It should be noted, however, that courts have the power to compel the mediator to testify if his or her testimony is required in the interest of justice; and although the information reveled during mediation cannot be used directly as evidence, it may be obtained through other sources or establish by other evidence. This topic will be further discussed in the next chapter.

The most profound advantage and maybe the most compelling reason to implement a mandatory mediation process, relates to its transformative capacity. Mediation empowers parties to participate in the resolution of their dispute and to preserve and sometimes even improve the relationship between them. Mediation offers more tailored procedures and more satisfactory outcomes to the parties. Arguably, this has a positive impact not only for the parties, but also for society as a whole, through increased social harmony. As Bush and Folger put it “ The occurrence of this transformation brings out the intrinsic good, the highest level, within human beings. And with changed, better human beings, society as a whole becomes a changed better

place”.[12]

Mediation can change even the way lawyers, and litigators in particular, operate. Historically, lawyers have been trained to be adversarial. As Macfarlane points out:

I mean, we’re trained as pit bulls … and pit bulls just don’t naturally sit down and have a chat with a fellow pit bull, the instinct is to fight and you just get it from the first phone call. I’m bigger and tougher and stronger and better than you are … (or as one female lawyer put it, ‘a bulldog with lipstick’).[13]

This traditional approach is unsuitable to new realities. With the implementation of the mandatory mediation, lawyers are driven to develop their negotiation skills and to change their approach to client representation. Again, Macfarlane states:

The new lawyer will conceive of her advocacy role more deeply and broadly than simply fighting on her client’s behalf. This role comprehends both a different relationship with the client, closer to a working partnership … and a different orientation toward conflict … Conflict resolution advocacy means working with clients to anticipate, raise, strategize, and negotiate over conflict and, if possible, to implement jointly agreed outcomes.[14]

Settlements reached at mediation are enforceable in the courts as binding contracts; see rule

24.1.15 of the Rules of Civil Procedure.

3.                   THE MANDATORY MEDIATION PROGRAM IN TORONTO AND OTTAWA. RESULTS AND CHALLENGES.

In January 1999, a mandatory mediation pilot project was introduced in the Province of Ontario. Rule 24.1 of the Rules of Civil Procedure implemented mandatory mediation for all non-family, civil case managed cases filed in the Ontario Superior Court of Justice in Ottawa and Toronto. It included a provision that Rule 24.1 would sunset on July 4, 2001 and an Evaluation Committee of members of the bench, bar, mediation community, and the public was constituted to oversee an evaluation of the rule.

Professor Carl Bar and Mr. Robert G. Hann conducted the evaluation. Their findings were published in “Evaluation of the Ontario Mandatory Mediation Program (Rule 24.1): Final Report- The First 23 Months” (the Final Report).

Based on the results set out in the Final Report, the Evaluation Committee released its own report on March 12, 2001, which made two major recommendations: (1) rule 24.1 should be made a permanent feature of the Rules of Civil Procedure; and (2) the rule should be amended to allow greater flexibility about the time of the mediation.[15] Mandatory mediation was subsequently extended to the City of Windsor on December 31, 2002.

Effective January 1, 2010, rule 24.1 will be expanded to include all cases commenced in Ottawa, Toronto or Essex, and is no longer limited to case management.

In this chapter we will review some of the major findings, concerns and recommendations made in the Final Report. We will also analyze the amendments to the Rules of Civil Procedure brought about by O. Reg. 438/08 (in force January 1, 2010) and the impact they may have in the mandatory mediation process.

MAJOR FINDINGS, CONCERNS AND RECOMMENDATIONS

The Final Report asked whether rule 24.1 improved the pace of litigation, reduced the parties’ litigation costs, improved the quality of disposition outcomes, and improved the operation of the mediation and litigation processes.[16]

The Final Report provides strong evidence that rule 24.1 significantly reduced the time taken to dispose the cases, and decreased cost to litigants. A high portion of cases (roughly 40%) were completely settled earlier in the litigation process, and an additional 20 % of cases saw partial settlements.17 In general, litigants and lawyers expressed considerable satisfaction with the mediation process under Rule 24.1. Although there were at times variations from one type of case to another, these positive findings applied generally to all case types – and to cases in both Ottawa and Toronto.

The evaluation arrived to the following conclusions[17]:

  • Mandatory mediation under the Rule has resulted in significant reductions in the time taken to dispose of cases.
  • Mandatory mediation has resulted in decreased costs to the litigants.
  • Mandatory mediation has resulted in a high proportion of cases (roughly 40% overall) being completely settled earlier in the litigation process –with other benefits being noted in many of the other cases that do not completely settle.
  • In general, litigants and lawyers have expressed considerable satisfaction with the mediation process under Rule 24.1.
  • Although there were at times variations from one type of case to another, these positive findings applied generally to all case types – and to cases in both Ottawa and Toronto.

As a result of these findings, the following recommendations were made regarding rule 24.1[18]:

  1. extend it for the current types of cases covered beyond July 4, 2001.
  2. amended it to increase flexibility as to the timing of mediation, as part of a process of continuous improvement of rule 24.1.
  3. extended it to other civil cases in Toronto and across the province, as part of the expansion of case management.

TIMING

In relation to the timing provision, rule 24.1.09(1) of the Rules of Civil Procedure provides that the mediation session shall take place within 90 days after the first defence has been filed, unless the court orders otherwise. However, rule 24.1.09(3) provides the option to postpone the mediation session for up to 60 days if the consent of the parties is filed with the mediation coordinator. The results of the evaluation concluded that approximately 85% of the cases in the pilot process complete their mandatory mediation within 150 days. [19]

Although the majority of respondents to the questionnaires expressed positive perceptions, a significant proportion of participants held negative views regarding the appropriateness of early mediation for some types of cases. The same view was also expressed by a minority of participants in the focus groups (especially lawyers in Toronto). On the other hand, the majority of mediators in both cities felt that it would have had a harmful impact if examinations for discovery had taken place before mediation began.[20]

The Final Report recommended not lengthening the time standards, but rather that further analysis and investigation be undertaken to better understand the factors/situations in which negative views about “early” mediation were held.[21] Based on these recommendations, as noted above, a major recommendation of the Evaluation Committee was that the rule be amended to allow greater flexibility about the timing of the mediation, without amending the standard

timelines.

The amendments to the rules brought about by O. Reg. 438/08 (in force January 1, 2010) increase flexibility by allowing the parties to postpone the mediation session to a later date if the parties consent to the date in writing and the consent is filed with the mediation coordinator; moreover, the standard timeline is that mediation shall take place within 180 days (rather than 90 days as under the current regime) after the first defence has been filed.

In my opinion, while the ability to easily postpone the mediation session is desirable, the extension of the standard timeline is unfortunate and will negatively impact the effectiveness of the mediation. Because mediation is an interests-based process, the likelihood of success is greater at the early stages of the dispute, before the dispute has been shaped into legalistic rightsbased “party positions”, the conflict has escalated and legal costs have built up. Carrie MenkelMeadow describes such escalation of the dispute, as follows:

The grievant tells a story of felt or perceived wrong to a third party (the lawyer) and the lawyer transforms the dispute by imposing categories on events and relationships which redefine the subject matter of the dispute in ways that make it amenable to conventional management procedures. This process of narrowing disputes occurs at various stages in lawyer-client

interactions.23

Early intervention of a skillful mediator minimizes the amount of time, costs, and efforts committed. The Final Report concludes that approximately 60% of the cases mediated reach either a complete or a partial settlement, while roughly 85% of mediation sessions took place within 150 days. By extending the time in which mediation must be held, the new rule creates a risk for 60% of litigants that would otherwise benefit from a complete or partial settlement

23 Carrie Menkel-Meadow, “The Transformation of Disputes by Lawyers” (1985) J. Disp. Resol.

25 at 31

through early mediation, to bear the costs of the delay associated with later stages of the litigation process, if they do not miss the opportunity to reach settlement altogether.

Generally, the most efficient time to resolve a dispute is the moment that it first arises. It follows that mediation would be more effective if it is mandated as a prerequisite to issuing a statement of claim. A mandatory mediation session prior the commencing the action will give the parties a precious opportunity to negotiate a settlement before heading down the adversarial/adjudicative model, and having rights-based positions in the litigation disrupt constructive communication between them. If this were done, a large percentage of claims would never get issued, and persons would get on with their lives with a fair, timely and cost-effective settlement, relationships would be preserved and the judicial system and the society as a whole would gain.

LEGAL COSTS

The Final Report recognized that “developing a full understanding of the impact of Rule 24.1 on legal costs is a task far beyond the resources and information available to the evaluation. Nonetheless, the evaluation stated that important contributions were made to knowledge in this area”.[22]

It concludes that when cases settle at, or soon after, the mandatory mediation, litigants save a substantial amount of money. The responses to questionnaires supported the conclusion that early mandatory mediation reduces costs. The response from focus groups was positive but not as strong. Litigants in 85% of cases felt mediation reduced costs; 78% of lawyers in Toronto cases, and 80% of lawyers in Ottawa cases felt similarly.[23]

The Final Report recommended that the results of the evaluation be used to design and secure funding for a more detailed study to obtain more comprehensive data on the costs associated with civil litigation, which would not only help understand mandatory mediation (and how its timing affects costs), but also address other issues of access to civil justice.[24]

Most practitioners and scholars in the field agree that mandatory mediation lowers litigation costs when cases settle at mediation. Its impact is less clear in the cases that settled at later stages of the proceeding or in those that never settled. Some argue that this additional cost to parties serves to increase rather than decrease the overall costs of litigation and, as a result, it has a detrimental impact on access to justice.

In this regard, Ontario may learn from the Saskatchewan mediation program, wherein mediators are full-time or contract mediators paid by the Department of Justice, so that the first session for up to three hours is not directly paid by the parties. Furthermore, the parties are not required to attend the mediation session with their counsel. [25]

IMPACT IN THE OUTCOME

The data analyzed in the Final Report focused on determining whether a complete settlement is achieved earlier in the litigation process, through mediation, in cases subject to rule 24.1. [26] The Final Report concluded that, in both Ottawa and Toronto, a significant proportion of cases – about four out of every ten – are completely settled at or within seven days of mediation. In addition, 13% of cases in Toronto and 21% of cases in Ottawa were partially settled during the mediation session. When compared to the “pre-Rule 24.1 Control Group” cases, rule 24.1’s

positive impact is significant.[27]

The evaluation also found that the majority of litigants and lawyers agreed with the statements “Justice was served by this process” and “The settlement was fairer than without mandatory mediation”. However, a substantial minority expressed concern with the quality of the outcome of the mediation, especially in Toronto. For instance, 33% of responding Toronto lawyers disagreed with the statement, “Justice was served by this process.” [28]

The objectives of mandatory mediation are reduce litigation costs and delay and to facilitate the early and fair resolution of disputes. The evaluation revealed concerns that because the process takes place in the shadow of the courts, the outcome may not be consistent with principles of social justice and fairness. “The protection of privacy afforded to parties who settle at mediation raises concerns about the role of private settlement for public wrongs”. [29]As Colleen M. Hanycz noted:

When looking at justice as a public good, our conversation must not stop at efficiency of costs, time and other resources but must, rather, include the crucial consideration of outcomes and accountability. Certainly, the commentators are largely in agreement that court-connected mediation has brought about an increase in efficiency — mediation is more efficient, but efficient at what? At resolving disputes earlier and more cheaply, perhaps, but what of the quality of those resolutions. As citizens dealing with one of our most cherished public goods, justice, we simply must have these discussions around accountability. Otherwise, the very core values of our justice system will slowly dissolve as we become increasingly preoccupied with making efficiency gains at any cost.[30]

Arguably, court-connected mediation systems tend to focus primarily on settlement rates as the mark of success. While achieving a settlement is one of the main purposes of the mediation process, the quality of disposition outcomes must also be considered. It my view, however, parties have a better chances to obtain a meaningful, fair and just resolution of their dispute with the facilitation of skilful and neutral mediator, as opposed to without one in a private settlement.

Considering the delays and costs of litigating, and of course the risk of an adverse decision in the end, I see no reason to think that the results achieved through mandatory mediation are not qualitatively fair. I do acknowledge that certain cases raising significant public policy issues or the breach of important legal/human rights should be adjudicated rather than settled in private. As Justice Vickers put in the following argument:

In an ideal world, the process of reconciliation would take place outside the adversarial milieu of the courtroom. This case demonstrates how the court confined by the issues raised in the pleadings and the jurisprudence on Aboriginal rights and title is ill equipped to effect a reconciliation of competing interests. That must be reserved to a treaty negotiation process … In an adversarial system claims are dealt with to produce a win/lose result. Interest negotiations, designed to take opposing interests into account, have the potential to achieve a win/win result. Such an approach, in the context of consensual treaty negotiation, would provide the forum for a fair and just

reconciliation.[31]

Under rule 24.1.05 the court may make an order on a party’s motion exempting the action from mediation. In Owen v. Hiebert [32], Kiteley J. stated at para. 13:

At the risk of generalizing from the few reasons for decision and from the somewhat cryptic explanation made by the Local Mediation Co-ordinators in the list tracking exemptions, it would appear that the following criteria are relevant to whether an exemption order should be granted:

  • whether the parties have already engaged in a form of dispute resolution, and, in theinterests of reducing cost and delay, they ought not to be required to repeat the effort
  • whether the issue involves a matter of public interest or importance which requiresadjudication in order to establish an authority which will be persuasive if not binding on other cases
  • whether the issue involves a claim of a modest amount with little complexity which is amenable to a settlement conference presided over by a judicial officer without examination for discovery
  • whether one of the litigants is out of the province and not readily available
  • whether the exemption for any other reason would be consistent with the stated objectivesof reducing cost and delay in litigation and facilitating early and fair resolution.

In relation to the consideration of the consent of the plaintiff for an order of exemption from mediation of the action, Kiteley J. stated at paras. 20 and 21[33]:

I have taken into consideration the consent of the plaintiff. However, consent does not mandate the granting of the order requested. In the course of considering a request for an extension of time for mediation, Master Polika observed the following at paragraph 14 of Rokicka v. Mechel et al [January 26, 2000]:

The last reason deals with the consent of the parties. One of the reasons for the enactment of Rule 77 and Rule 24.1 were the concerns which were expressed by litigants about the manner in which their proceedings were being prosecuted by their own lawyers. Mere consent, by setting out a statement in the Form 77C certified by the moving parties lawyer, in my view is not enough for me to exercise my discretion to grant the extension. Lawyers, purportedly on behalf of their clients, cannot without good real reason supported by the material filed in support of the motion, simply by consent justify the exercise of discretion to extend the time for holding mandatory mediation.

The same observation can be made with respect to consent to exempt.

As mentioned above, the amendments to the rules brought about by O. Reg. 438/08 (in force January 1, 2010) provide that mediation may be postponed to a later date if the parties consent to the date in writing and the consent is filed with the mediation coordinator. However, the consent of the parties is neither necessary nor sufficient to obtain an order exempting an action from mediation.

POWER IMBALANCES

Some commentators argue that mediation it is not appropriate for disputes in which there are significant power imbalance, e.g., economic wealth or expertise, as the party holding more bargaining power will secure an advantageous agreement at the expense of the weaker party. Other scholars are of the opinion that in these cases the mediator may play an important role either empowering the weaker or disempowering the stronger. This approach is not consistent, however, with the neutrality required by the mediator. Genevieve Chornenki argues that:

Unfortunately, this preoccupation with power as control or influence provides commercial parties with little meaningful information about the attitudinal change that interest-based mediation requires. It suggest that mediation is but an extension of commercial norms and that if one could only do away with troublesome excesses and abuses of power, then the benefits of mediation could be enjoyed by all. In practice, interest-based mediation takes the emphasis off power as influence or control and places it on a different kind of capability, that of the ‘collective’. It is the voluntary joining together of parties in the pursuit of a join problem solving exercise rather than their successful domination of another that is at the heart of interest-based mediation’s true “promise”. When such join efforts take place, the parties do exercise power, but not as influence or control. Instead, they are engaged in the power of the collective, here referred to as power-with”.[34]

In Owen v. Hiebert [35], Kiteley J. addressed concerns of a party intimidating another (at para. 19):

The concerns of the defendant can be accommodated by (a) selecting a mediator with skills to address issues of violence; and (b) exploring with that mediator whether the mediation can proceed without the necessity of the plaintiff Owen and the defendant being present in the same room. With those concerns accommodated, I see no reason to exempt this action from mandatory mediation. Indeed, I find that it is consistent with the objective of the mandatory mediation pilot project that the parties participate in mediation in order to give them an opportunity to explore an early and fair resolution.

Notably, the evaluation found that while a majority of litigants in both cities gave positive ratings to mediators’ overall skills in moving the parties towards an agreement, ability to understand the facts and the legal issues, and degree of involvement in determining the outcome, mediators’ ability to address power imbalances between the parties was less positively rated.

CONFIDENTIALITY

In Baker v. Zurich Canada, [36]the Ontario Superior Court held that the existence of confidentiality as an implied term in mediation was a determination to be made contextually, on a case-by-case basis. While the court recognized the widely accepted importance of confidentiality as paramount to the mediation process, it was nevertheless unwilling to deem it an implied term unless the particular circumstances supported such determination.

This flexibility leads to uncertainty and unpredictability, permitting substantial judicial discretion in balancing the public interest in disclosure against the future credibility of the mandatory mediation process.[37] As Abella J.A. stated in her concurring decision in Rogacki v. Belz:

The failure to protect confidentiality could profoundly prejudice the effectiveness of mandatory mediation. It is difficult to see how anyone would agree to be open and frank in discussions designed to effect settlement—discussions they have no choice about participating in—while there is no protection for the confidentiality of the process.[38]

In a more recent case dealing with the issue, Rudd v. Trossacs Investments Inc.[39], the Ontario Superior Court (Divisional Court) refused to allow the examination of a mediator as a witness on a motion to determine whether one of the parties in the action was a party to the settlement agreement reached. Mediation communications are privileged unless there is some overarching interest requiring disclosure, e.g., to protect children at risk from criminal activity. At para. 39 Swinton J.A. held:

The ability of parties to engage in full and frank disclosure is fundamental to the mediation process and to the likelihood that it will lead to resolution of a dispute. There is a danger that they will be less candid if the parties are not assured that their discussions will remain confidential, absent overarching considerations such as the revelation of criminal activity.

During mandatory mediation the parties cannot bear the concern that, if a settlement is not reached, any information that they may provide during the mediation process could be used against them. This will fatally undermine the trust needed by the parties to seek agreement and consequently the mediation process will undoubtedly fail.

SELF-DETERMINATION

One of the basic principles of mediation is self-determination. The outcome of the mediation process has to be voluntary. In 1995, the Ontario Ministry of the Attorney General conducted a survey of client users of the Toronto General Division ADR pilot project. This survey found that one in three of the clients whose cases settle at mediation felt that they had been pressured into final agreement. [40]It would be completely improper for a mediator to coerce or dictate settlement terms. As Menkel-Meadow notes:

If settlements are not consensually arrived at (through mandatory and coercive court programs, or because the choice is not real when one cannot afford to wait to litigate, or because there are such vast disparities between the parties that ‘consent’ cannot be given), then we must question whether such a settlement should be enforced. As ADR becomes institutionalized in courts, there is a danger that people will “consent” to settlement because they feel they have no real alternative. If there is no consent, an important value justifying settlement is absent.[41]

Other scholars consider that the self-determination principle in mediation include not only the consent on the agreement but also the consent to participate in the process. According to Moore “[Mediation is] a voluntary process… . Voluntary refers to freely chosen participation and freely

made agreement.”[42]

However, being required to participate in mediation does not require one to reach settlement.

Moreover, any party can seek the court’s leave to be excused from mediation: see rule 24.1.05.

THE VOLUNTARY/MANDATORY DICHOTOMY

As we have discussed above, rule 24.1 requires the parties and their lawyers to attend mediation sessions. If one or both parties does not attend or file a statement of issues with documents necessary to inform the mediator of the nature of the matter, the mediator could file a certificate of non-compliance. If the Case Management Master or Judge invokes them, penalties for noncompliance range from the imposition of a timetable for the action, through striking of pleadings, dismissal of the action, costs sanctions, or any other order that is just.

The mandatory mediation program has proponents and detractors. Its detractors argue that mandatory mediation will not operate in the same way its voluntary form does.

Justice James M. Farley puts it this way:

If a facilitator will materially assist, then mediation may be appropriate. I am a big fan of mediation in the appropriate case. However, I am concerned that unless our litigation culture changes, mandatory mediation will become another expensive step on the already long and expensive path of litigation. The beauty of voluntary mediation is that by agreeing to have the matter mediated, the parties are halfway to a settlement.[43]

I accept that voluntary mediation would be preferable to the mandatory form and that the results in the former may be superior in numbers and fairness; but how can we persuade the parties to take advantage of this valuable mechanism to resolve their disputes? How can we make the strong to sit voluntarily with the weak to negotiate a fair settlement in the friendly environment of a mediation session? In my opinion, the best way to achieve these goals, on a broad basis, is by making mediation mandatory.

Rule 24.1 encourages litigants and their representatives to enter the process. The Final Report supports this view. For instance, comparing the results in Ottawa, which had a similar mandatory mediation scheme under a Practice Direction two years earlier to the implementation of rule 24.1, and Toronto, where the practice under rule 24.1 was new, revealed that, in Ottawa, 86% of lawyers and 88% of litigants agreed with the statement, “Assuming you had the choice, would you use mandatory mediation again to resolve similar disputes under similar circumstances.” In

Toronto, by contrast, 66% of lawyers and 73% of parties agreed with the same statement.

Overall, the results of the evaluation were superior in Ottawa than in Toronto. This supports the conclusion that the longer the mediation process is in place, the more lawyers and parties are

willing to participate.

A roster mediator in the program noted:

As a Roster Mediator since the program started, I have had four years experience with that program. I am a Roster Mediator in both Toronto and Ottawa. Going into the program my expectation was that I would be frequently meeting with a group of lawyers and parties who did not wish to settle…. I soon saw that my expectations were wrong. What I found was that lawyers and parties were generally prepared and willing to spend the scheduled minimum three-hour mediation working hard at reaching a settlement. [44]

Other concerns relate to the transformation that affects mediation as a dispute resolution mechanism once is connected to the court system. In this respect Della Noce argues that:

In ‘connecting’ with the courts, mediation has become more an instrument to serve the traditional values, goals and interests of the judicial system, and less a social process in its own right, with its own separate history, traditions, norms and goals. Attention to the realization of social values not directly related to case management – which generally meant those values related to improved quality of human interaction that were uniquely a part of mediation as an independent social process -tended to get lost. In the process, mediation began to look more and more like the legal and judicial processes for which it was once proposed as an alternative.[45]

That mandatory mediation takes place within the court process does not mean, necessarily, losing all of its benefits. Once in front of a capable mediator, being out or within the court system, is less significant than the parties actively and creatively pursuing a final voluntary and fair settlement through interests-based negotiation. Then mandatory mediation constitutes in fact an alternative resolution mechanism to the adjudicative model within which it takes place.

Finally, I would like to argue that the term “mandatory” to describe the mediation within the court is not in my opinion appropriate. I would suggest instead using either the term “courtconnected” or “court-based”. Since the mediation process takes place within the civil litigation process it becomes part of the proceeding and therefore the term “mandatory” constitutes a redundancy and can create misperception and rejection of the process. We do not use, for instance, the terms “mandatory discoveries” or “mandatory hearing” to describe other steps in the proceeding.

4.      CONCLUSIONS

Mediation as a dispute resolution mechanism offers significant benefits to parties engaged in a civil dispute and constitutes a valuable alternative to the adversarial/adjudicative model. The mediation process has the flexibility to tailor the process to the parties’ needs and aspirations. Parties play a chief role in the interests-based discussions and in the outcomes. This process enhances communication, and preserves and improves the relationship between the parties.

Mediation helps the parties to achieve a fair and just settlement at early stages of the dispute, reducing costs and time expenditure. In addition, because the mediation process preserves and enhances the parties’ relationship, it is not only beneficial to them but also for the society through increased social harmony.

A mandatory mediation program has been in place since 1999 in relation to non-family, civil case-managed cases in the Ontario Superior Court of Justice in Ottawa and Toronto. The program was permanently implemented after an evaluation conducted in 2001 revealed the program’s benefits and lawyers and litigants expressed satisfaction with the program. The program was then extended to the City of Windsor on December 31, 2002.

Effective January 1, 2010, mandatory mediation will be expanded to include all cases commenced in Ottawa, Toronto, and Essex, and the process is no longer going to be limited to case managed or simplified procedure cases.

Although not free of controversy, mandatory mediation has improved the court system by relieving case-load pressures and reducing delay and costs for litigants in the regions where it has been implemented during the last decade. Therefore, mandatory mediation should be extended to the rest of the Province of Ontario.

 

31

[1] L. Nader, ed., The Disputing Process: Law in Ten Societies (New York: Oxford University Press, 1978) at 10 [Nader, Ten Societies].

[2] Colleen M. Hanycz, Whither Cmommunity Justice? The Rise Of Court-Connected Mediation in the United States, (2007) 25 Windsor Y.B. Access Just. 167 (page 17. P 1)

[3] The Association of Family, Court and Community Professionals, “In the Beginning”, online: AFCC Homepage <www.afccnet.org/docs/learn_ history.htm>

[4] Rules of Civil Procedure, R.R.O. 1990, Reg. 194.

[5] Evaluation Committee of the Ontario Civil Rules Committee “Report of the Evaluation Committee for the Mandatory Mediation Rule Pilot Project” March 12, 2001.

[6] C.W. Moore, The Mediation Process: Practical Strategies for Resolving Conflict, 2d ed. (San Francisco: Jossey-Bass, 1996) at 15

[7] Ibid. at 18.

[8] B. Landau, “Family Mediation” in A. Stitt, ed., Alternative Dispute Resolution Practice Manual (Don Mills, ON: CCH Canadian, 1996) (looseleaf), at paras . 3122-29 and 3132-35.

[9] J.Macfarlane, “Court-Based Mediation in Civil Cases: An Evaluation of the Toronto General

Division ADR Centre” (Toronto: Ontario Ministry of the Attorney General, 1995)

[10] L. Nader and L. Singer, “Law is the Future: What are the Choices? (1976) 51 cal. St. B.J. 218 at 318

[11] Lake Utopia Paper Ltd. V. Connelly Containers Inc., 608 F2d 928, at 929-30 (2d Cir. 1979)

[12] R.A. Baruch Bush and J. Folger, The Promise of Mediation (San Francisco: Jossey-Bass, 1994), at 28-40

[13] Julie Macfarlane [The New Lawyer: How Settlement is Transforming the Practice of Law] (Vancouver: UBC Press, 2008) 304 pages at 12.

[14] Ibid at 109

[15] Supra note 5 at 2

[16] Hann, R., and Associates “ Evaluation of the Ontario Mandatory Mediation Program

(Rules 24.1): Final Report – The First 23 Months” 2001 (Toronto, ON: Queen’s Printer,) c1 17 Ibid. at c2

[17] Ibid.

[18] Ibid.

[19] Ibid. at c 4.2

[20] Ibid.

[21] Ibid.

[22] Supra note 16 at c 4.3

[23] Ibid.

[24] Ibid.

[25] Queen’s Bench Act, 1998, S.S. 1998, c. Q-1.01 s. 42

[26] Supra note 16 at c 4.4

[27] Ibid.

[28] Ibid.

[29] D. Luban, “Settlements and the Erosion of the Public Realm” (1995), 95 Georgetown Law Journal 2619 and the ensuing discussion in chapter 1, Conflict Analysis.

[30] Supra note 2 at 26

[31] Tsilhqot’in Nation v British Columbia (2007), [2008] 1 C.N.L.R. 112 at paras. 1357-60

[32] Owen v Hiebert, 2000 CarswellOnt 1900, 50 O.R. (3d) 82, 11 C.P.C. (5th) 302, [2000] O.J.

No. 1882 (Ont. S.C.J. May 30, 2000)

[33] Ibid.

[34] G. Chornenki, “Exchanging ‘Power Over’ for ‘Power With’” in J. Macfarlane, ed., Rethinking Disputes: The Mediation Alternative (Toronto: Emond Montgomery, 1997), at 164-65.

[35] Supra note 34.

[36] Baker v. Zurich Canada (2004), 68 OR (3d) 350

[37] J. Watson       Hamilton, “Protecting Confidentiality in Mandatory Mediation:     Lessons  from

Ontario and Saskatchewan” (1999), 24 Queen’s Law Journal 561, at 569-75

[38] Rogacki v. Belz (2003), 232 DLR (4th) 523 (Ont. CA)

[39] Rudd v. Trossacs Investments Inc. 2004; 244 D.L.R.(4th)758, 72 O.R.(3d)

[40] J. Macfarlane, Court-Based Mediation for Civil Cases: An Evaluation of the Ontario Court (General Division) ADR Centre (Toronto: Ontario Ministry of the Attorney General, 1995) at 143-44 and 47.

[41] C. Menkel-Meadow, “Whose Dispute is it Anyway?: A Philosophical and Democratic Defense of Settlement (in some Cases)” (1995) 83 Geo. L. J. 2694.

[42] Supra note 6 at 19

.

[43] Justice James M. Farley “The pursuit of Justice” 2002 The Advocates’ Society Journal 4, 10 13

[44] Kathryn Munn “Ontario Mandatory Mediation Expands: Four Years Experience” 2002-2003 Conflict Resolution Services, Common Ground, Conflict Resolution News, #19 Winter.

[45] Della Noce, “Mediation Theory and Policy”: The Legacy of the Pound Conference” (2002) 17 Ohio St. J. Disp. Resol. 545 at 550-51