The Canadian Bar Insurance Association
Employment & Labour, Mediation

Higher settlement rates with evaluative mediation

Mandatory mediation has proven to be successful in the Ontario jurisdictions where it’s been implemented, and expanding the program across the province would go a long way toward making justice more affordable and accessible, says Toronto employment mediator and arbitrator Barry B. Fisher.

Mediation is compulsory for civil matters in Toronto, Ottawa and Windsor, he tells AdvocateDaily.com. It was launched as a pilot project in 1995 and adopted permanently after it proved to help resolve disputes and divert cases from the court system.

Twelve years on, it only exists in three communities. Fisher, principal of Barry Fisher Arbitration & Mediation, believes it could have a substantial impact were it to be rolled out right across the province.

“It would make a huge difference to court processes and access to justice,” he says. “In effect, we almost have two judicial systems: One where the parties have direct access and are required to mediate and another where they don’t."

The mandatory program is one of four major areas that Fisher says have an impact on how mediation is used in Ontario.

A current trend he has seen is a move away from joint sessions toward direct negotiation with a mediator.

Traditionally, the process begins with both parties gathering with a mediator in the same room. The mediator typically begins with an introduction of the process and then the parties split up and the mediator shuffles between the two rooms until a settlement is achieved.

But Fisher has found little use for the joint session process, particularly in employment law, and has seen a higher success rate in the last few years since he stopped using that approach.

“The most I could ever conclude is that people would say that joint sessions did not hurt the process. So I started asking myself: ‘Why are we doing something which at best is neutral.’ So I decided to stop doing them. My settlement rate went up, as did client satisfaction.

“I allow the lawyers and the clients to choose their preferred approach, and in the last three years not a single group of lawyers or clients has chosen a joint session.”

A third area he has noticed in the evolution of mediation is the move away from the facilitative mediation method that is typically taught, toward evaluative mediation, which is more of an analytical practice.

The facilitative approach encourages discussion to help people generate ideas for resolution and reflect on their case to come to a deal. But the mediator serves as a kind of guide and avoids offering an opinion or evaluation of the legal merits of the case, he explains.

A mediator who takes the evaluative approach will outline the strengths and weaknesses of the case for each party and relies upon their own personal knowledge of both the court process and more specifically the area of law in question.

While mediators use different tools and aren’t necessarily purists, relying on one approach or the other, Fisher sees more success with the use of the evaluative tools.

“I’ve seen a trend of people getting more work done using the evaluative school as opposed to the facilitative format,” he says. “People hire me to settle the case. If the case doesn’t settle it fails.

“Experience has shown the evaluative mediator is busier and has a higher settlement rate because, at the end of the day, most lawyers want a mediator who is going to get them a deal.”

Fisher’s fourth observation is about the lack of headway that arbitration has made over the years.

While it is seen as a great alternative to using the expensive and overburdened court system, Fisher believes it isn’t being used as often as it should be.

Some employment contracts include an arbitration clause, which Fisher encourages, but it hasn’t caught on, he says. 

“It has a high settlement rate and therefore saves valuable court time.”

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