The judicial mediation debate Ontario Bar Association forms taskforce
PHIL BLISS / THEISPOT.COM
Ask any group of lawyers, judges or pri-
vate mediators whether judges should be
directly involved in mediating civil dis-
putes and you will ignite fierce debate.
The Chief Justice of Ontario in a
recent article described judicial mediation in Ontario as existing in a state of
suspended animation, neither formally
sanctioned nor precluded (W.K. Winkler,
“Some reflections on judicial mediation:
Reality or fantasy?” The Advocates’ Journal, Dec. 2010, 3-5.). He called on the
legal profession to debate the issue and
help chart the future role of judicial
mediation within the dispute resolution
options available in the province.
The Ontario Bar Association (OBA)
has taken up the issue by forming a Judi-
cial Mediation Taskforce, the aim of
which is to:
n Develop a comprehensive under-
standing of the current judicial mediation
landscape;
n;Determine whether, and if so how, judi-
cial mediation could improve access to
justice and enhance the reputation of the
administration of justice; and
n;Make appropriate recommendations to
the relevant policy makers to further
those goals.
Clarifying status of judicial
mediation in Ontario
Judicial mediation is practised across
Ontario, from the “fireside chat” in chambers in Brockville, to the redoubtable but
effective second or third “pre-trial” in
Toronto. Yet, the practice is not formally
governed by the Rules of Civil Procedure
BRYAN
FINLAY
&DAVID
STERNS
and no guidelines exist as to how and
when it is to be conducted.
This unofficial status means, among
other things:
Most importantly, there is the issue of
whether or not a more formalised
approach to judicial mediation is in the
public interest.
These are only some of the concerns
that the taskforce will consider. It will also
review how other provinces integrate judi-
cial mediation into their systems.
Variations across Canada
While many provinces formally recog-
nize the role of the judiciary in settling
disputes, there is wide variation in the
mandate and directions given.
B.C.’s settlement conference rules, for
example, direct the judge or master to
“explore all possibilities of settlement of
the issues that are outstanding.” Quebec’s
settlement conference judges are to “
facilitate dialogue between the parties and help
them to identify their interests, assess
their positions, negotiate and explore
mutually satisfactory solutions.” Judges in
Alberta are mandated to “actively facilitate” a process in which the parties agree
to resolve all or part of a claim.
Provincial rules also vary in terms of
whether the judicial dispute resolution
process is entirely voluntary. In Quebec,
parties must consent even where a judge
“suggests” a settlement conference. B.C.
courts, on the other hand, can order parties
to attend any dispute resolution process.
Some provinces have rules that are very
detailed. Quebec goes as far as to specify
that settlement conferences are to be conducted “without formality.” B.C.’s settlement conference rules are comparatively
Spartan leaving the parties themselves to
agree on the process subject to the judge’s
overriding discretion.
While no province requires the judi-
ciary to use mediation techniques in their
dispute resolution activities, some prov-
inces encourage an “interest” based as
opposed to “rights” or “position” based
approach. In Quebec, legal rights are
downplayed to such a point that lawyers
are excluded from the process unless
invited by their clients to attend and no
written materials are submitted. In stark
contrast, Nova Scotia’s rules keep settle-
ment conferences very much in the rights
based arena. The stated purpose is to
allow the parties to “request a judge to
express opinions on the issues in dis-
pute....” The parties are even given the
option of having a trial-like settlement
conference in which witnesses are called.
Bryan Finlay is a partner at WeirFoulds
LLP in Toronto. David Sterns is a partner at
Sotos LLP in Toronto and Chair of Public
Affairs at the OBA. They co-chair the OBA
Taskforce on Judicial Mediation.
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