Mediation not for every judge

  • July 16, 2013

Ontario needs firmer rules surrounding how the judiciary are used to settle difficult to mediate cases before trial, a recent Ontario Bar Association report obtained by QP Briefing says.

A Different Day in Court was written in response to the province's lack of firm guidelines detailing what role judges can and should play in helping private mediators settle disputes where parties are too entrenched to compromise or where litigation is desired.

"There is a role for the judiciary to participate in the settlement process, but the primary focus in Ontario should remain with private mediators that ... do a very good job of mediating the vast majority of cases," David Sterns, counsel with Sotos LLP and lead author of the report said.

"But there is a small percentage of cases which take up an inordinate amount of judicial resources when parties are hell bent on litigating to the death, and the public is served in those cases by having the courts get involved in trying to settle those cases before they go to trial," he told QP Briefing Tuesday.

For their own benefit and for that of the public that relies on an efficient legal system, Sterns argued that some parties simply need "face time with a judge" to more fully appreciate the realities of the trial process before committing to potentially lengthy and costly litigation. Where mediators have been unable to get warring parties to agree, the OBA hopes a judge will succeed.

The Ontario Bar Association, a branch of the Canadian Bar Association, struck a task force to consult with lawyers, judges, legal experts and mediators across the country to study current mediation frameworks in other jurisdictions.

The idea was to help guide the province in drafting clearer rules for how judicial dispute resolutions can occur while avoiding the creation of a one-size-fits-all pan-Canadian solution that may work in Alberta's court system but would not jibe with Ontario's.

The report does caution that the gravitas of a judge can be a double-edged sword, used to convey the weight of the justice system should a settlement not be found.

But that weight and the manner in which some judges use their power in mediation in itself can be overkill and actually hurt the chances of finding an acceptable settlement.

"Judges have to learn or instinctively know how to soft peddle," Sterns said.

"It comes naturally to some who are excellent mediators, but other judges are not as comfortable in that form and are more assertive - they take charge, and that can be a stronger message than really is needed or intended."

The report is recommending some measure of self-selection among judges to encourage those with the right skill set to step forward and those who lack a more even keel to perhaps take a pass.

Sterns said the OBA is also calling for consistency in how judges approach mediation, saying that many other Canadian jurisdictions that have adopted judicial dispute mediation have required judges to go through a minimum form of training beforehand.

Despite servicing the largest volume of legal participants of all Canadian provinces or territories, Ontario has lagged behind in judicial mediation guidelines largely because of its internationally regarded system of mandatory private mediation1.

While the province relies on private mediators to deal with the vast majority of cases, "there are some cases that are just intractable," Sterns pointed out.

The Bar Association has presented the report to Ontario's Attorney General John Gerretsen, but Sterns insists they're not going to dictate how best to implement the recommended changes. While legislation could propose the new guidelines the OBA seeks, the changes could also be implemented through a regulatory change in the rules of civil procedure.

"Right now we are hoping to advance the dialogue and identify this as an area where there is potential for making the system more efficient, more transparent and more accessible," Sterns said.



SOURCE: QP Briefing