Lawyers practicing any form of litigation know that mediation can be a client's best friend. It's an efficient, effective, and fair mechanism to resolve clients' differences in a timely way. In 1999, the Ontario Mandatory Mediation Program established a pilot project to test the advantages of mediation by making it mandatory for most civil litigation matters in Toronto, Ottawa, and Windsor. That's right: 1999 – 24 years ago.
To be fair, there have been minor adjustments. The Rules of Civil Procedure have been amended to provide for mandatory mediation in contested estates, trusts, and substitute decision matters, but again, only in Toronto, Ottawa, and Windsor. This leaves much of the vast backlog of cases currently before Ontario courts without placing any obligation on the parties to explore the possibility of a mediated solution.
This is despite the overwhelming empirical evidence that mediation works.1 It allows parties to craft their own resolution, considering their specific priorities and interests, which may have little or nothing to do with the strict application of legal principles. It allows both parties to feel they have "won" or at least that they have exercised their own choice to hold their respective noses and agree to the best alternative to the litigated option, i.e. permitting a third party stranger to decide whether they are either a winner or loser.2
For readers looking for statistics, the Ontario Bar Association points to the significant reduction in the time taken to dispose of cases; the decreased costs to litigants; and the general satisfaction of stakeholders with the mediation process.3 This is not to mention the relief of pressure on the overburdened Court system, currently even more dire than when the OBA made its submissions in 2020, early in the COVID-19 pandemic.
Mediation provides parties with a timely, fair, lower-cost alternative to the stress and risks of continuing litigation. It clears the Court's docket for matters which cannot otherwise be resolved and gives parties agency over their own legal destiny. Given all these benefits, there is no reason for the provincial government to wait for its "pilot project" to pass the quarter-century mark. Mediation should be made mandatory for litigants across the province as soon as possible.
1. There are, of course, situations where mediation is not appropriate, including where there is a significant power imbalance between the parties, a history of physical or mental abuse, etc.
2. OBA Submission on LAO Modernization Project, p. 10. This was a submission by the OBA to the Attorney General in September 2020.
3. Ibid., p. 10-11.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.