Time for mandatory mediation to be rolled out province-wide

By Tony Poland, LegalMatters Staff • Mandatory mediation is a simple yet effective solution to the problem of civil court backlogs, says Ontario mediator and litigator Avril Hasselfield.

Hasselfield, a partner with Results Mediators, says the civil court system in Ontario needs an overhaul to ensure access to justice.

“More judges would help but that requires funding and time to train them,” she tells LegalMattersCanada.ca. “Meanwhile, mandatory mediation has been around for quite a long time. It started as a pilot project in Toronto and Ottawa before being introduced in Windsor and it has proven to be very effective.”

“There has been endless discussion about expanding it but it hasn’t happened and I don’t understand why,” Hasselfield adds. “Most litigators would like to see it rolled out province-wide.”

‘Help people settle their cases early’

The Ontario Mandatory Mediation Program (OMMP) is designed “to help people settle their cases early in the legal process to save time and money,” according to the provincial government. Under rule 24.1 of the Rules of Civil Procedure, the government states that most civil lawsuits in Toronto, Windsor and Ottawa must go to mandatory mediation. There are some exceptions, such as family law cases.

In a OMMP session parties can agree to select a mediator from the Mandatory Mediation Program’s roster or choose a mediator who is not on the roster.

Hasselfield says in a 2020 submission to the Attorney General of Ontario, the Ontario Bar Association (OBA) called on the province to immediately expand the OMMP.

“The COVID-19 pandemic and related Court backlogs strengthen the already robust case for expanding mandatory mediation,” the OBA states. “Mandatory mediation reduces the burden on Courts because earlier settlements lead to fewer motions, pre-trials and trials.

“Mandatory mediation increases access to justice because litigants can achieve resolution of cases more quickly and with fewer legal costs. Mandatory mediation comes at no cost to the government because the relatively modest cost of mediation is paid for by litigants.”

The association says an “extensive study” of mandatory mediation shows it resulted in:

• significant reductions in the time taken to dispose of cases;
• decreased costs to litigants;
• a high proportion of cases being completely settled earlier in the litigation process; and
• considerable satisfaction on the part of lawyers and litigants.

The OBA states that given the benefits of mediation, the documented success of mandatory mediation and the support of Ontario lawyers “there is no reason why more litigants and Courts in Ontario should not have access to the many benefits” of the OMMP.

The status quo remains

“The Ontario Bar Association made some compelling arguments but the status quo remains,” says Hasselfield. “I wonder if the government is just too busy putting out all the other fires in the justice system. It does not appear that the government is taking any active steps to improve the civil litigation system. Expanding mandatory mediation is a simple quick essentially cost-free step in the right direction that everyone agrees on and yet nothing has happened for years.”

She says court backlogs  have been a problem since she began practising law more than 20 years ago and “it is just taking longer and longer to set court dates for motions, pre-trials and trials, taking years before anyone can get a court date.”

“The shortcomings in the civil system are making it increasingly difficult for the average person to find timely justice in the legal system,” Hasselfield says.

She applauds recent provincial government funding efforts to alleviate backlogs in the criminal court system and says she realizes there is only so much money to go around, which is why expanding mandatory mediation beyond the original pilot cities makes sense.

Mediation is used in an attempt to solve disagreements without going to court. According to the Ontario government, a neutral third-party mediator “helps the disputing parties communicate with each other and find a solution that works for everyone.”

Mediation encourages problem-solving

“The purpose of mediation is not to determine who wins and loses but to try and resolve the dispute in a non-confrontational way and avoid the risks and costs of going to trial,” the province states. “In situations where the people involved in the lawsuit have an ongoing relationship, mediation is helpful because it encourages problem-solving and improved communications.”

Mediators are not judges and do not:

• take sides;
• make decisions;
• impose settlements; or
• give legal advice.

“Mediation allows you to have more control over your dispute,” Hasselfield explains. “The problem with going to trial is you are leaving the decision in the hands of a judge who only sees what is presented to them. There can be so many things that happened or didn’t happen throughout the life of the lawsuit that a judge may not be aware of and you don’t always know what they will focus on.”

“In a court settling, a judge may not pick up on all the issues and nuances that they should,” she adds. “Then you get a yea or nay, and that is it.”

Increasing backlogs slow the process

Going the trial route is not only expensive but the increasing backlogs make getting your day in court extremely difficult, Hasselfied says.

“That can really change the atmosphere, especially for plaintiffs, because if you don’t settle, your only option is a trial,” she says. “You can say, ‘See you in court.’ But how many years down the road will that be? What kind of a system is that?

“Then you have to deal with the expense. If you are paying thousands or hundreds of thousands of dollars in court costs it rarely makes financial sense to take a matter to trial that is not well over six figures or closer to seven figures,” adds Hasselfield. “That speaks to how settling matters in mediation is good for litigation while helping to alleviate the strain on backlogged courts.”

She says mediation “changes the playing field.”

“So much work goes into presenting your case to a judge. Then it is essentially taken out of your hands and given to a judge as opposed to arguing all the pros and cons with the other lawyer or litigant,” Hasselfield says. “Court is rarely the best outcome for most people.”

She says mediation is extremely effective in bringing two sides together to find a resolution.

“That is why expanding mandatory mediation makes so much sense,” Hasselfield says. “There appears to be a great deal of support for it. I believe it is an effective and easy fix that would only improve access to justice.”

In Part One of this two-part series, Ontario mediator and litigator Avril Hasselfield discussed Ontario’s shortage of resources and the growing court backlog.