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| Stuart Rudner |
We have had mandatory mediation in Toronto and Ottawa since that time and Windsor was added in 2002. However, despite the fact that mandatory mediation decreases costs to litigants, reduces the time to dispose of cases and decreases the number of cases in our overburdened court system, mediation is not mandatory anywhere else in Ontario, which creates the strange dynamic where a claim filed in Toronto must be mediated but the same claim filed approximately 40 kilometres away in Brampton does not have to be.
The reality is that mandatory mediation helps to reduce the systemic legal costs and the costs to the parties. It has a remarkable success rate, and every settlement that is achieved is one less case that must be handled by the courts. While “mandatory mediation,” or any mediation for that matter, may not be a sexy topic, access to justice is a concept that resonates with the public and the media. Since mandatory mediation clearly improves access to justice, it should be something that our government is keen to expand.
In addition to reducing the number of active cases in our courts, which reduces costs and improves access to justice, mediation has other advantages. One of them is that mediation allows for resolutions that are tailored to the needs of all parties. Furthermore, many people find mediation more satisfying than a trial because they play an active role in resolving their dispute, rather than having a solution determined by a judge. It also allows for more creative resolutions which can include terms which a court cannot order; in the context of wrongful dismissal claims, that could include things like a letter of reference, outplacement counselling, or re-employment training.
Some other benefits (some of these points have been taken from submissions made to the Attorney General of Ontario by the Ontario Bar Association) include:
- The confidentiality and informality of the process allow parties to be candid and engage in constructive discussions that lead to mutually agreed resolution;
- In situations where the parties have an ongoing relationship, mediation is particularly helpful because it promotes co-operative problem-solving and improved communications; and
- Mediations require the parties to take a hard look at the strengths and weaknesses of their opponent’s and their own cases, and the costs of proceeding to trial. Even where cases do not settle, mediations can lead the parties to narrow and streamline the issues in dispute leading to more efficient trials.
As counsel, I found that the vast majority of the cases that I took to mediation resulted in a settlement. As a mediator, I can say that almost all of them are resolved. Every one of those settlements is a case where the burden on the court system was reduced, the public costs were lessened, the parties’ legal costs were substantially diminished, and the time needed to reach a resolution was drastically reduced. Furthermore, the parties were able to tailor a solution to their specific needs, rather than have a conclusion imposed upon them. And they were able to avoid airing their dispute in a public forum.
The OBA surveyed its members twice in 2019 about their experience with mediation, and the results include:
- approximately 90 per cent and 70 per cent of respondents respectively were in favour of expanding mandatory mediation, although it should be noted that the response rate to the second survey was not high enough to be considered statistically significant;
- mandatory mediation is particularly popular with lawyers who practise in regions where mandatory mediation currently exists, confirming the anecdotal comments that once lawyers had dealt with mandatory mediation they expressed considerable satisfaction with the program; and
- a number of lawyers reported that they frequently started proceedings in cities where mandatory mediation is available, instead of the cities in which the parties and counsel reside and carry on business (which overburdens courts in mandatory mediation jurisdictions).
One objection to mandatory mediation that I have heard is that for those in remote locations, mediation can add a significant expenditure of time and money as the parties and counsel are forced to travel or pay the mediator to do so. With the widespread adoption of video mediation (which I have found to be tremendously effective), this is now a non-issue.
Pith and substance
It is time for this “pilot project” to end and mandatory mediation to be expanded across the province so that the same rules apply regardless of where a claim is filed. That was the recommendation over two decades ago in a study which assessed Ontario’s experience with mandatory mediation over the initial 23 months of the pilot project, which included 3,000 mediations. With the increased court backlogs due to the pandemic, mandatory mediation is needed more than ever.
Until we have mandatory mediation across Ontario, we will be stuck working in a system where the same claims filed in neighbouring jurisdictions will have different procedures, with the majority of those jurisdictions not including a step which has been shown to improve access to justice. Counsel will continue to forum-shop by filing claims in jurisdictions based on whether mandatory mediation is in place or not, which can add to the already overwhelming caseload in some jurisdictions.
There is little if any downside to having mandatory mediation across the province. In those rare cases where mediation will clearly not be helpful, counsel can submit pro forma briefs and make a cursory appearance to satisfy the requirements of the Rules. Conversely, every other case will benefit, as will our judicial system.
Stuart Rudner is a leading Canadian employment lawyer and mediator at Rudner Law. He is the author of You’re Fired! Just Cause for Dismissal in Canada. He can be reached at 905-209-6999 or stuart@rudnerlaw.ca.
The opinions expressed are those of the author(s) and do not necessarily reflect the views of the author’s firm, its clients, The Lawyer’s Daily, LexisNexis Canada, or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.
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