As judges increasingly participate in dispute resolution efforts, there are few safeguards to protect the integrity of the system. But soon, a new report from an Ontario Bar Association task force on judicial mediation will consider some areas for improvement so that mediation can be a more effective option in the judicial toolkit.
There’s plenty of debate as to the merits and detriments of bringing judges into the dispute resolution field. Elena Mamay of Cambridge LLP has had extensive experience with judicial mediation in Europe and the United States and can advance the arguments for and against. She worked for the war crimes tribunal in Bosnia and Herzegovina and later went on to practise civil litigation in Boston.
One of the advantages is the ability to select the judge who will conduct the mediation. “The judge appointed to the trial might not know the area of law we are bringing before them,” says Mamay.
“Where the issues are important and the litigants are not in a position to pay for exorbitant legal costs, having an experienced judge with expertise in a particular field is a huge benefit. Judges focus on the fundamental legal issues. They dig through the debris and emotion and come out with a decision.”
David Sterns of Sotos LLP, who’s co-chairman of the OBA task force along with Brian Finlay of WeirFoulds LLP, agrees that where parties won’t accept anything said by a private mediator or a lawyer, there can be a case for judicial mediation. “A bit of gravitas can bring home to the party that their case is not as strong as they thought. Judicial mediation in some way satisfies the need to tell it to a judge and have their day in court. That’s a function that’s hard to replicate in any other environment.”
Mamay feels this aspect can also contribute to the main detriment. “The parties often felt forced into agreeing. Often, the interests they were trying to protect were broader than those involved in that particular litigation. At the end of the day, they had to weigh the financial benefit against those broad interests, their values, and other stakes.”
“Judges obviously carry a lot of weight,” says Sterns.
“What makes it so effective is that the judge carries not just one view but the opinion of the whole judiciary. Judges need to be sensitized to the force of the opinion received and how intimidating it can be.”
Sterns has observed a tendency among judges to foretell results, something that doesn’t typically happen in private mediation. “They need training in facilitation so there is no overstating of outcomes,” he says.
In fact, the OBA task force didn’t question whether the practice should be an option or not. “Judicial mediation goes on and has always gone on,” says Sterns.
“We didn’t really consider whether it is a good thing or a bad thing because it is a reality in day-to-day litigation. The question is: When does it happen and how is it accessed?”
The task force asked those questions of a broad cross-section of the practising bar and judges across Ontario and beyond in order to get updated intelligence on judicial mediation. “One thing we heard was that the pretrial conference is no longer working as intended,” says Sterns.
“Before private mediation became available, it was your best chance of getting a glimpse of how the trial might proceed. What’s happened since is that the private mediation bar in Ontario has blossomed until it is second to none. No one wants to undo or reverse that progress, but there is still a vital role for judicial dispute resolution. Our desire is that it will dovetail with the private mediation bar that we have.”
Sterns notes the focus comes back to the pretrial conference because everyone has to go through that. “The pretrial has two very different roles. Firstly, there is the trial management process. You get the views of the judge as to how the trial can be more efficient and how the parties should best prepare for it. After that, they may encourage settlement. Some judges treat it as the primary function and some as an afterthought. This creates great uncertainty for lawyers and clients. It’s completely different in how you prepare and conduct yourself and the client’s role is different, too. It’s like getting ready to go to the ballet and finding it’s a wrestling match.”
The consensus from the bar was that the pretrial conference should be split in two. “Trial management is essential to a good pretrial conference,” says Sterns.
“The settlement aspect may be useful to some people but not to others. Currently, the pretrial offers settlement facilitation to parties who don’t want it and fails those who do.”
Mamay recalls that in the U.S. jurisdiction in which she worked, the process wasn’t mandatory but was available upon request. “I was the one who recommended it, then it was the client’s decision. The main reason was the complexity of the issues, for example, where it was not pure contract law or immigration law but a bundle of issues interconnected with layers of complexity.”
There’s also a call for greater transparency in how judicial mediation comes about. “The whole thing is a bit unpredictable,” says Sterns.
“The parties make their wish for judicial mediation known and then it’s a bit of a mystery which cases are selected.” The report will recommend that the trial management aspect remain mandatory followed by a more focused dispute resolution opportunity offered to those who need it.
“This is not to say that judicial mediation will come into play when the case is ready for trial at the last minute,” says Sterns.
“We don’t want to close the door to early-stage judicial mediation attempts. If we can achieve bifurcation of the pretrial conference, we will take the focus that exists in the current system and make it more effective and transparent. If we make the ADR process work better, it will free up trial resources.”