For almost 20 years, mediation has been required in most civil litigation proceedings in Toronto, Ottawa and Windsor through the Ontario Mandatory Mediation Program (“OMMP”). Under the OMMP, cases are referred to mediation early in the litigation process so that parties may explore settlement options prior to the pre-trial and trial process. The OMMP was introduced in Ontario in 1994. By 1999, Ontario amended relevant provisions in the Rules of Civil Procedure to establish mandatory mediation in the Cities of Toronto and Ottawa and the County of Essex (“Windsor”). Today, mandatory mediation applies to certain civil actions under rule 24.1 of the Rules of Civil Procedure and to contested estates, trusts and substitute decision matters under rule 75.1 of the Rules of Civil Procedure. The OMMP has proven its benefits in the above regions by increasing access to justice and alleviating burden on the court system.
Despite its success, the OMMP has not been made available in other regions in Ontario. This is a mistake; a pilot project which is wildly successful should no longer be a pilot project but the benefits of same should be rolled out to everyone in Ontario, eliminating the current ‘two-tier’ justice system which exists now. It is the position of this paper that a provincial roll-out of mandatory mediation will be instrumental in alleviating the current backlogs in Ontario courts and addressing the province’s urgent need to increase access to justice.
Advantages of Mandatory Mediation
The purpose of mediation is not to determine who wins or loses, but to find common understanding and develop nuanced solutions that may not be achievable at trials. The mediator is a neutral third party trained to facilitate constructive communication and negotiations, gain understanding of the parties’ interests, and find a solution based on mutual agreement.
There are many benefits to mediation. In a mediation, parties are encouraged to realistically evaluate the strengths and weaknesses of their own and their opponent’s cases. This evaluation leads to settlements or, where the cases do not settle, narrowing of issues in the dispute. Litigants often find mediation more satisfying than a trial because they get to play an active role in resolving their disputes. The mediation is informal and confidential, so parties may speak more openly than at trial. Where parties have an ongoing relationship, the less antagonistic nature of mediation promotes cooperation and improves communication rather than damaging the relationship.
Since its introduction in 1994, the OMMP has proven itself advantageous for both the court system and litigants. For the courts, mandatory mediation has resulted in significant reductions in the time taken to dispose of cases. Statistics showed that 40% of cases are completely settled without going through motions, pre-trials and trials. Mandatory mediation also comes at no cost to the government because the relatively modest cost of mediations is paid for by litigants.
For litigants, the mandatory mediation process has led to increased access to justice. Although litigants pay for the costs of mediations, early mediation means litigants can achieve resolution more quickly and incur fewer legal costs. Additionally, the Ontario Bar Association (“OBA”) surveys showed that costs of litigation are reduced even for the cases that do not settle, because parties are forced to evaluate the merits of their cases early on.
Some lawyers reported in the OBA surveys that they frequently “forum shop”, which means they start proceedings in cities where mandatory mediation is available, instead of the cities in which the parties and counsel reside and carry on business. This practice results in higher costs for litigants because counsels spend time and resources travelling to another jurisdiction. It also overburdens courts where mandatory mediations are available. At the same time, the prevalence of “forum shopping” demonstrates lawyers’ enthusiasm for utilizing the mandatory mediation process.
Another important factor is to understand that enforced mediation already exists across the province. This is because approximately 30% of civil cases in Ontario are based on motor vehicle accidents, the highest percentage of any one type of case, and in these cases the Plaintiff has a right to mediation under s. 258.6 of Ontario’s Insurance Act. Even further from the regulations there are strict timelines for agreeing to mediation, and the Defendant insurer must pay 100% of the mediation fees, no matter the outcome. Therefore in many cases across the whole province the Plaintiff already has the option of forcing a mediation, without consent of the Defendant or their counsel.