Is the Mandatory Mediation Program in Ontario Still Viable?

When mandatory mediation was introduced in Ontario 27 years ago it was heralded as visionary as it offered many necessary benefits that could not be accommodated at the time, particularly a more efficient legal process. As with any reform, there is the need for revision over time. Unfortunately, the Mandatory Mediation Roster has not received such reform and is a poor state of disrepute.

Back when the Roster was first introduced the courts were backlogged, and the common explanation was because there were insufficient courtrooms and a need for more judges to speed the process up and cut the wait time. Such problems are not easy to address on a number of levels. Firstly, and of primary consideration, was the financial implications and considerations associated with the introduction of new programs and/or services. Such changes require expenditure of funds which is often recouped by increasing the taxes to the electorate who already feel overburdened by the amount of taxes they pay. This poses challenges for any government in power and impacts the addition of new services. Apart from this significant consideration, there are always other fiscal constraints that need to be addressed if one were to change the ever-increasing backlog.

In addition to the financial burden of adding new services, there was also the question of adding additional judges’ salaries. From the provincial perspective, one could argue that the salaries for the judges who were needed would be paid by the federal government and thus there was no need for more money. However, it is important to remember that while this is true, the costs of the staffing are the responsibility of the provincial government of the day. One must remember that the cost of a judge’s ancillary staff including clerks booking, filing, scheduling the attendant police officers. court clerks’ prosecutors and court officers cost way more than the salary of 1 judge. These considerations and their impact on the government’s considerations, budget, and bottom line.

Even if the finances required for additional staffing were not a problem, the attendant cost of construction of new courts would be prohibitive. Additionally, and far more important a consideration, is the fact that it would take a significant amount of time to construct new courts even if it were financially feasible. Thus, in the interim this option was not considered viable as the overburdened court system could not have been rectified for several years even if all the above-mentioned considerations and barriers could have been overcome.

The consideration for improving the system regardless, apart from the lengthy waits being experienced, were that the costs of ligation were becoming exorbitant. According to Chief Justice Winkler, a two-day trial in 2009 was $40,000 per side (Ally & Barclay, 2011) and it has only increased. These costs were making access to justice difficult. Representation could be attained by those who were financially wealthy as the costs of representation posed no problem or financial hardship. However, alternatively, the poor could submit an application to qualify for a legal aid certificate thus affording them some modicum of representation but to qualify for such a certificate one had to be experiencing such financial hardship that the applicant would have been nearly destitute. This meant that the vast majority of people, including the middle class, were consequently squeezed out and likely could not get affordable fair legal representation. These considerations were magnified with the verdict returned in the Askoff case, which upheld the right to a timely trial in the Criminal Court. As a result of the backlogs and this ruling many cases were thrown out as the rights of many of the accused had been prejudiced.

Concurrently, in the civil bar similar concerns were being raised as the process of getting before a judge was constantly increasing and were getting longer and longer. Voices were being raised and concerns were being expressed by both the plaintiff and defense bars around the potential for prejudice to their clients’ respective rights due to extensive delay.

In an attempt to assuage concerns the mandatory mediation process was introduced into the law under Rule 24 of the rules of Civil Procedure. This introduction was a win-win solution for the government. The wait time could be reduced without needing to hire more judges, incur a cost of additional staff, or construct more facilities. In addition to this the government was immediately able to cut the waiting lists by offering fully qualified mediators from a roster that they created and did not cost them anything as the parties paying the mediators’ rate. The service was offered at an incredibly low price and the government was able to offer a solution to the problem of backlog and long wait times that did not require paying for equipment or benefits to the mediators. Clearly the government of the day was able to claim many kudos for this innovative solution.

The fact that Chief Justice Winkler had the insight to introduce the mandatory mediation program clearly demonstrates that he was innovative to the point that one might well compare him Henry Ford with his Model T. Whether or not Chief Justice Winkler was aware of the machinations of politics is immaterial inasmuch as he was offering a solution to a legal problem that was currently challenging the court. Suffice it to say what was developed was an approach that could cut the wait time for court while offering knowledgeable solutions to deal with the issues at hand, in a very cost-effective manner. Thus, this solution was able to help mitigate the long waits for pretrials and trials and pacified many of the backlog concerns that motivated the change. Moreover, it also offered these services at an affordable cost and was empowering as it was putting the power back into the hands of the claimants since lawyers were not necessary for mediation. The introduction of the mandatory mediation was heralded as a much needed innovation.

Like any new process introduced into a system there are always teething problems. After some initial resistance from counsel, most of which were ironed out, a fully functional process developed overtime. With repeated use the system became more operational and has gained utility today. As with any reform, there is always the need for revision over time, more so especially in law, in part due to the ever-evolving interpretations of the practice of law. The constant use of the law begs specificity in decisions that are situationally appropriate, to achieve this change becomes a constant. With new decisions constantly occurring, the old rules, wording and generalizations are insufficient and not compliant when compared with cases that have occurred in the law 20 years ago. When Henry Ford invented the Model T it was the best car available, but from that time to now there have been numerous changes and refinements to the current operational systems and functionality of the automobile. Today we have air conditioning, heating, turn signals, and are, within limits, nearly self-driving. That is not to imply that the Model T is a bad car, but given the needs of the population one is highly unlikely to choose a Model T as their primary car. By and large, any and everyone would be opting for a more recent vehicle capable of better providing the necessities to cope with the challenges of driving today. This is clearly a testament to, and demonstrates the need for, the ongoing refining of products after they are completed.

Unfortunately, despite the innovative work undertaken by Chief Justice Winkler in his introduction of the mandatory mediation process, the subsequent attorneys general have not, in my opinion, spent the necessary time refining the process as is necessary. Initially when the Mandatory mediation program was introduced it was a hallmark achievement. Consequently, everyone who had desires on becoming a mediator applied for inclusion. In the initial phase after the program was up and running, and for a significant period of time after, it was fully functional and maintained its appeal. After the first few years there were as many as 480 plus members on the roster. As time continued so did life, changes continued to evolve including significant changes in the statutes of accident benefits including moving from fifteen thousand deductible to thirty thousand and then the minor injury guidelines. Similarly in the areas of Estate, and Employment changes continued to occur. In fact, mandatory mediation with so effective that the area of Family Law, which had been excluded from mandatory mediation due to concerns in its application, had now been added as mandatory. Clearly this was also done in an attempt to cope with and meet the needs being expressed around lengthy delays, and more importantly it reinforced the fact that the mandatory mediation program was working

Unfortunately, despite its success, the staff and roster members have been neglected. From a business perspective, the operational costs for all businesses continue to increase over time, including the price of real estate to house practices as offices, telephone costs, computer costs, malpractice and the cost of living in general continued its upward spiral. At the same time, as claims continue to soar and referrals continued to be sent out, the government, rather than support the program, chose instead to cut back on the already small and overworked staff, whittling it down from a Director with a dedicated portfolio and four full time staff who were responsible for receiving requests, making assignments, and keeping timelines in order, to only two part time staff and a Director with other responsibilities and transient supervisors who had mediation as a small portion of their portfolio. This reduction of staff, in my opinion, was the first blow in the heart of the program. The symbolic cutting of the staff, and the additional removal of physical departments specifically dedicated to mediation, clearly sent a message as to the consideration of how important a contribution mediation could make.

27 years after the initiation of the Mandatory Mediation Roster and the introduction of mediation into the laws of Ontario, continues to only operate from the three locations that were initially chosen: Toronto, Ottawa, and Windsor. This despite the success of the program, the burgeoning backlog the cases in many other jurisdictions and municipalities, as well as the requests for the expansion of the program. Not only have the staff’s opinion been disregarded but there also has not been active dialogue between the attorney general’s office and the mediators on the roster. The few occasions that there has been such interaction most of the respondents have clearly articulated the need very expansion of the program to meet the needs of all, yet these requests have fallen on deaf ears and there has been no response and or change in 27 years.

Another concern is that the tariffs payable to mediators has not been increased since the Rosters inception. I suggest it would be impossible for anyone to show me where they can purchase a cup of coffee for the price they paid 27 years ago, yet the government has seen fit to maintain the same rate and the same of my number of hours despite the evidence amassed over time that clearly speak to the need for change. To many mediators this has been a clear signal from the government, irrespective of which government is in power, of the little regard they are paid and how undervalued and underappreciated the mediator’s work has been despite the significant contribution they have made to alleviating the backlog of long court delays. As a result, many have chosen to leave the roster despite their love of the work and how they are able to assist parties through the complex court the process because it is no longer financially feasible to remain under such outdated terms and conditions. The evidence of this is clearly demonstrated in the numbers of mediators remaining on the roster. As indicated previously there were approximately 480 plus mediators, today there are less than 80 with a significant number of these no longer accepting roster assignments or not even in the practice. In fact, it may well be that many of these mediators have just not been removed from the list by the government due in part to the same lack of diligence expressed in this article. In reality, the actual functional level of mediators on the civil mandatory roster in Toronto is probably less than 1/10 of what it was when the program was fully functional.

Resulting from this lack of support and ongoing maintenance, what has developed is a two-tier system. When companies or counsel want to resolve a claim, they go to their lists of private mediators and choose one of their preferred mediators due to their competence in the specific area of practice. In contrast to this, when companies either believe there is no hope of resolution based on their view of the case, or they want to pressure the other party by lengthening the time it takes for them to get a rendered decision, they utilize the roster mediators since it only costs them a fraction of what it would cost if the used an off-roster mediator. The effect of this choice is that it allows the party or parties to fail the mediation since the investment is exceedingly small, especially when compared with mediations in the private sector.

As a result, the roster has fallen into disrepute, with its mediators being treated as second class and lacking in experience. It is my opinion that this once innovative program is in a state of disrepute and needs to be addressed promptly. Not only had the roster accomplished the goals it set out to achieve, which are once again vital given the backlog created by COVID, the roster also provided new mediators with the opportunity to get experience, refine their skills, and gain name recognition such that counsel can include them in their choice of preferred mediators. Offering new mediators opportunities allows them to develop their practices over time such that as older members of the profession retire, they can be replaced by the up and coming, thus creating a cyclic process in which there would always be a need for new trained mediators. Instead, what is occurring today is that new roster mediators are not getting to demonstrate their skills nor can they afford to continue working for the 27-year-old rate. Thus, many new mediators are leaving the profession and no one is being groomed to replace established practitioners. The only solution is for the government to act now by addressing the systemic barriers being experienced by the new and or unconnected mediators.

ENDNOTES

Ally, B., Barclay, L. (2011). Hijacked by Ulterior Motives: the Manipulation of the Mandatory Mediation Process in Ontario. Accessed on January 10, 2022.  Link

                       

Bruce Ally

Bruce Ally is the founder of A Place for Mediation. As a mediator in private practice he has conducted in excess of 4000 matters. He is an instructor in the Lawyer in Negotiation course at Osgood Hall Law School, and a facilitator in the Advanced Mediator Program and the Workplace… MORE >