Ontario Mandatory Mediation Program Overview
Following Ontario’s Civil Justice Review conducted in 1994, the province’s Mandatory Mediation Program (MMP) began as a pilot project developed to address the near paralysis of the justice system. The MMP was the Ministry’s strategy “to provide a speedier, more streamlined and more efficient structure which will maximize the utilization of public resources allocated to civil justice” (the Ministry of Attorney General’s “First Report of the Civil Justice Review” 1995). Ottawa was the first region to experiment with MMP for most (non-family) civil cases, followed by Toronto in 1999 and Windsor in 2002.
Current mandatory mediation only applies in Ottawa, Toronto and Windsor to certain (non-family) civil actions pursuant to rule 24.1 of the Rules of Civil Procedure, while Rule 75.1 pertains to mandatory mediation for contested estates, trusts and substitute decision matters. Under the MMP, cases are referred to mediation early in the litigation process to allow parties to narrow the issues in dispute and participate actively in the conflict resolution process.
The Civil Justice Reform And MMP Transformation
In “Evaluation of the Ontario Mandatory Mediation Program (Rule 24.1): Final Report — The First 23 Months” (2001), the majority of both lawyers and litigants agreed that they were overall satisfied with the mandatory mediation experience in that the design met its objectives.
Despite encouraging findings, many also noted mandatory mediation is not a perfect cure-all for all disputes and our justice system.
Some criticized representatives using mandatory mediation as a “discovery” process, rather than participating in the process with the intention to settle (“Hijacked by Ulterior Motives: The Manipulation of the Mandatory Mediation Process in Ontario” 2008). Some argue they have insufficient information so early in the process to make informed decisions about settling – particularly in personal injury cases – leading to frequent motions for extensions of time. Some argue most civil cases settle without mediation anyways: for cases that will reach settlement with or without mandatory mediation, rule 24.1 adds another layer of cost to the litigation process (“Mandatory Mediation: Does it Facilitate Pre-Trial Settlements” 2002).
However, the message that alternative dispute resolution is embedded, and here to stay, in our civil procedure is clear. As former Chief Justice of Ontario, Warren Winkler mentioned, mediation is a centrepiece in our civil justice reform. In parts of Ontario, where courts are heavily utilized, there are currently three built-in process to mediate: mandatory mediation, pre-trial settlement conference, and judicial mediation.
Despite the unabating backlog of cases and serious consideration given to eliminating mandatory mediation as a costly and redundant step, the reviewing committee believed the better approach was to ensure that mediation occurred, at some point before trial, when all parties are prepared and willing to do so.
The proposed solution was to extend the 90-day timeframe.
In 2010, rule 24.1 mandated that mediation must take place within 180 days after the first defence is filed, unless the parties agree or the court orders otherwise.
The Future Of Alternative Dispute Resolution
Mandatory mediation is a collaborative conflict resolution process where all stakeholders are encouraged to participate at the table. Whether you are a proponent or not, the process is mandated in the Rules of Civil Procedure.
The discussion now shifts towards expanding and making mandatory mediation a uniform process across the province, and across the nation even.
Note: mandatory mediation is not designed as the perfect cure-all for everyone and it is not without costs. Parties are encouraged, for the process to remain meaningful and used as intended, to come to the bargaining table in good faith, expecting to reach a reasonable settlement.
The bottom line is, there will always be cases better suited for an actual trial. Mandatory mediation does not extinguish that right. However, as former Chief Justice of Ontario W. Winkler noted, “litigation is nevertheless still beyond the financial means of the average person in Ontario.”
“To encourage case settlement and reduce litigation costs” remains the basic tenets of alternative dispute resolution.
If you or someone you know needs legal help in navigating the ADR landscape, MEHDI AU LLP is a full-service firm that serves clients across the GTA and Ontario.
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