The time for mandatory mediation has arrived: Rudner

By Tony Poland, LegalMatters Staff • Mediation is an effective alternative to litigating employment issues but it is not utilized as often as it should be, says Toronto-area employment lawyer and mediator Stuart Rudner.

“I would like to see mandatory mediation for all employment issues be expanded across the province because right now we only have it in a few jurisdictions such as Toronto and Ottawa,” says Rudner, founder and principal at Rudner Law. “I would also see to like to see arbitration used more frequently. We often talk about alternative dispute resolution (ADR) and the alternatives to litigation in the employment bar. I suppose it is a matter of constantly reminding practitioners of this option and encouraging people who are at the beginning of a dispute that they don’t have to go through the traditional process which leads to filing a claim in court.”

He says many lawyers are creatures of habit and cling to tried-and-true routines.

‘We all get stuck in our ways’

“We all get stuck in our ways. We are all used to the same procedure where letters are exchanged and then someone files a claim in court before going through the litigation process,” Rudner tells LegalMattersCanada.ca. “It can be difficult to adapt to a new approach when you are used to doing something one particular way. 

“Even in mediation, people use certain mediators over and over. It is important to take the time to think about whether it makes sense to do something differently. That way people are able to escape from those ruts.”

He says arbitration has shown to be effective in many areas of the law.

“However, it has never really taken hold in the employment bar,” Rudner explains. “Ironically, many employment lawyers complain that we don’t have a specialized employment law court as they do for family law for example. And they complain about the court process and judges who aren’t familiar with employment law. Yet we have an option available that allows us to choose our own Judge and customize a process to the specific case: arbitration. We just rarely use it.”

“I would see the employment law bar voluntarily use mediation and arbitration more often,” he adds. 

Going to trial can be expensive, time-consuming

Rudner says going to court can be expensive and it is not unusual for cases to drag on.

“There are lawyers who do everything possible to drive up the costs on their client’s behalf. Litigation can be used as a weapon,” he says. “It is one of two things. Either you have a party who is vindictive and wants to punish the side. Or you have counsel that uses every procedural tactic to drive up the costs, knowing that their client has deeper pockets than the other side.

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“Eventually, the other side is going to run out of money and gives in, accepting  a settlement that is much less than what they may deserve.”

In instances where it is obvious someone is being unreasonable it is possible to ask for a case conference or request that a judge intervene, says Rudner.

“But that only goes so far,” he says. “If you have a party that is set on driving up costs, it is very difficult to prevent them from doing it. You cannot force someone to settle and you cannot always force someone to behave reasonably.”

Many cases have been delayed due to COVID

Rudner says it also takes much longer to settle a file in court than with ADR, especially now that many cases have been delayed due to COVID.

He says when he meets with clients, he lays out all the options available to reach a settlement.

“I try to be as open as possible. One thing we always say is that even if you are in the right legally, that doesn’t mean you should fight every case,” says Rudner. “It can be a fairly pyrrhic victory if you spend more money in court costs than you get in a settlement. Even if you win and the other side has to reimburse you for some of your legal fees, you never get all of your costs so you are still out of pocket.

“Whether they are the plaintiff or the defendant, I try to make my clients aware of the downside of litigation. They have to make a financial decision. That takes into account not only the money it will cost but the time and resources, as well as the stress and uncertainty,” he adds. “I warn them that litigation is unpredictable. Some people cannot bear that stress, and some corporations do not want to invest the time. Conversely, it is a matter of principle for some, and they will fight if they think they are right. Principles cost money in this context, and I want them to understand that. At the end of the day, I will proceed as my client chooses; I just want them to make an informed decision.”