It's time to expand mandatory mediation in civil litigation
By Paula Kulig, AdvocateDaily.com Contributor
“The program is working, so I wonder why it hasn’t been made consistent throughout Ontario. It’s 2018,” says Romero, principal of the mediation firm VR Law.
“How many more years have to pass before the government makes it available across the whole province?”
The mandatory mediation program began in Toronto and Ottawa in 1999, and in Windsor in 2002. It pertains to most civil actions under Rule 24.1 of the Rules of Civil Procedure, and applies to estates, trusts and substitute decision matters under Rule 75.1.
While mediation can still take place, family law cases are excluded from mandatory participation in the program, as are several other types of litigation, including mortgage actions, those falling under the Construction Lien Act and the Bankruptcy and Insolvency Act, certain matters that were the subject of mediation under the Insurance Act, lawsuits certified under the Class Proceedings Act and those on the Toronto Commercial List.
“The program was created with the idea of reducing the cost and delay in civil litigation and I think it has worked really well in these cases because the parties are mandated to participate. Sometimes that’s what’s needed,” Romero says.
“They’re forced to sit at a table and talk, but they’re not forced to settle. So, they still retain the right to do what’s best for them.”
She says she agrees that mediation in family law matters should be voluntary, not mandatory, because of the special dynamics in such cases.
“It’s important because if there are issues of domestic violence or there’s a power imbalance, one of the parties won’t feel safe or comfortable and can’t sufficiently negotiate. Why would you want to force them?” says Romero.
“In family mediation, there is always an intake process, where the mediator assesses if the case is good for mediation,” she says. “Even if both parties are willing, the mediator can still say no if they feel it’s not a safe situation.”
Even the use of “shuttle mediation,” where the parties in a family law dispute sit in different rooms and the mediator moves back and forth during the negotiations, may not be appropriate if “the issues of domestic violence are so severe that it’s not safe,” Romero says.
“There are some cases that are not fit for mediation. But that’s up to a professional mediator to assess.”
In civil litigation cases that don't involve family, where there’s a “one-time interaction” and the parties will never have to deal with each other again, mandatory mediation makes sense, she says.
But in family law matters, the parties will often continue to have contact — especially if children are involved — and so they “really need to be motivated in mediation. And if they don’t want to settle, forcing them to sit at a table will only make things worse,” Romero says.
“We should use mediation in a way that serves each area of the law according to the nature of each dispute,” she says.
“So, it makes sense that in family cases, it’s voluntary and in civil litigation, it’s mandatory.”