Thus far, this blog has focused on the
many benefits of mediation and alternative dispute resolution (ADR).
But one of the things about ADR is that it is an alternative, as is
indicated by its name. It allows for parties to have options to
litigation should they decide it is not in their best interest for
whatever reason. It allows for more creative problem solving where
there is opportunity for it. So when mediation becomes mandatory and
is imposed on parties, does it lose some of its benefits?
Rule 24.1 of the Ontario Rules of
Civil Procedure1
requires that civil matters which are subject to case management2
must have a mandatory mediation in the cities of Toronto, Ottawa, and
Windsor before they can go on to litigation. While family matters
are excluded from mandatory mediation, estates, trusts and substitute
decisions are also included by Rule 75.1. Essentially then, parties
who are involved in conflicts in these legal and geographical areas
are forced to go through a mediation before they can go to trial.
There is an option to opt out, however it requires a motion before a
judge which in and of itself can be time consuming and have costs
associated with it.
There are indeed many benefits to
mediation. For example, many cases settle. It is certainly more
cost-effective than going to trial. It is often preferred in
situations where relationships will be ongoing.3
It provides more options for integrative solutions than a trial,
leading to a higher likelihood that a resolution will meet the needs
of both parties. It allows parties to participate in the resolution
much more than in litigation. It is confidential and informal,
leading to a more comfortable setting for many. And finally, even if
parties don't settle in mediation, it can still lead to increased
communication and insight into the other party's point of view.4
But are there situations where
mediation is undesirable, or where it won't work? Is it fair to
impose mediation in such cases?
There are a few cases where mediation
is unlikely to work. One example could be where a party wishes to
challenge a precedent, or set a new one. Mediation itself will not meet the needs of such a party because settlement in
mediation is confidential, and so the outcome will be private. Similarly, if a party wants the public to be aware
of an issue, then going to trial may be part of the process of
publicizing that issue. There may also be cases where more
experienced parties, with knowledge of the issue they are disputing, know that mediation will not be successful. It may also be
that a lawyer knows his/her client well, and knows that he or she is
not open to settlement. In cases such as these, the case will
inevitably go to trial, and a mandatory mediation would be a waste of
time and an obstacle to accessing the courts.
It is my opinion that in situations
such as these, there should be an option for exemption from the
mandatory mediation clause without having to go before a judge. If
there is truly no real potential for settlement in mediation, then it
is a waste of time, money, and resources to proceed with mandatory
mediation. Parties must pay for the costs of mediation as well as
for their representation, in addition to preparing for the trial.5
There may be extra time required to prepare for mediation and
delays in acquiring a court date. These delays and costs may be worthwhile where mediation is has a good chance at success, but they are not fair nor desirable where where mediation is highly unlikely to produce any positive
results.
It seems from my own personal
conversation with an experienced litigator that in his experience,
mediation only really succeeds where parties are open to it. As he
put it, “unless everyone involved wants to mediate, you are wasting
your time.” This may especially be the case in commercial
litigation where parties generally have some experience with conflict
resolution and know what they want. This makes sense given that
mediation is supposed to be an alternative which stresses
self-determination and voluntariness, and so making it mandatory
tends to undermine its very essence.6
What I would suggest then would be a
more flexible approach to mediation which better reflects some of its
voluntary characteristics. As previously stated, mediation can have
a lot of benefits. Mandatory mediation can also be useful as a
temporary means of introducing mediation to regions where it is not
well known or well utilized in order to raise awareness about it.
This has likely been accomplished in Ottawa, Toronto, and Windsor
given that mandatory mediation was introduced in 1999 (2002 for
Windsor). Also, the Law Society of Upper Canada Rules of Professional
Conduct ensures that lawyers will tell their clients about
alternative dispute resolution options under Rule 2.02(3), making their clients aware of the option. It should therefore
be up to them and their lawyer to determine whether they want to
pursue mediation.
What I would suggest would be a
quasi-mandatory mediation rule – quasi because it would have a
broader opt out mechanism which is easier to access. For example,
all that might be required to opt out would be a letter signed by
both client and lawyer showing that mediation was discussed and is
not desirable in the case at hand. Any unreasonable refusal of
mediation could also be taken into account by the court when
determining costs as an incentive, as is done in the United Kingdom.7
Such a system would be simple to implement, would not add any extra
steps to the process, and would retain the voluntary and
self-determining aspects of mediation. Generally, the mediations
that do proceed would probably be very successful since the parties
who mediate have chosen to do so.
1RRO
1990, Reg 194.
2Case management refers to a system where the court supervises cases and imposes time lines on the pretrial and trial process (see Notice cited in note 4).
3Julie
Macfarlane, Dispute Resolution: Readings and Case Studies, 3
ed (Toronto: Emond Montgomerty Publications, 2011) at 327
4Ministry
of the Attorney General, “Public Information Notice – Ontario
Mandatory Mediation Program”, online:
<http://www.attorneygeneral.jus.gov.on.ca/english/courts/manmed/notice.asp>
5Ibid.
6Dorcas
Quek, “Mandatory Mediation: An Oxymoron? Examining the Feasibility
of Implementing a Court-Mandated Mediation Program” (2010) 11.2
Cordozo Journal of Conflict Resolution 479 at 484.
7Ibid
at 490.
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