Ontario Chief Justice Warren Winkler has put a cat among the pigeons with a public call for mandatory mediation to be part of the family law process.
But the widely divergent views held by experienced practitioners mean the proposal is in for some rigorous debate before anyone is brave enough to see it fly. “I did it to generate discussion and to get people thinking outside the box,” says Winkler.
“I have no pride of ownership in this. The No. 1 area where access to justice is critical and where there is a denial of access is family law.
Currently, there are so many steps that it becomes protracted and the parties end up as self-represented litigants at trial. When people have problems that are destroying their lives, we have to find a way to fix it.”
The grounds for opposing the proposal are many, but one that inevitably gets mentioned is that it’s impossible to force people to mediate successfully.
As a result, the process won’t work if the participants are unwilling. Esther Lenkinski of Lenkinski Family Law & Mediation Professional Corp. is one lawyer who voices that concern.
“To be successful at mediation, the parties must be motivated to succeed,” she says. “Until they are educated about the effects of divorce, mandatory mediation at an early stage is not useful.”
She’s not the only lawyer to feel that way.
The results of the Law Commission of Ontario’s consultations for its Best Practices at Family Justice System Entry Points project released in September noted there was “a lot of skepticism about mandatory mediation, mediation being a process that can only work if both sides are committed to solving their issues on their own with the guidance of the mediator and trust the process.”
Winkler is undaunted by this particular concern. “I have a lengthy background in mediation,” he says.
“I couldn’t tell you how many cases I’ve settled where one party didn’t want to be there, so I am not discouraged by that. It is still a voluntary process once you are there. You can refuse to agree and go home.”
Winkler notes he has already been down this path before. “When we introduced mandatory mediation as part of the civil justice reform, it reduced the waiting time to trial by two-thirds.
I’m confident it will reduce the inventory of family law cases and free up judges for trials and I’m sure it will be in the best interests of the parties by making the system better, cheaper, and quicker.”
The second major concern is that it will replace the case-conferencing system imposed on all family law cases in Ontario by the Family Law Rules in 2004.
Many participants in the justice system believe the system provides an opportunity for early settlement and ensures that cases proceed with a certain speed. In Lenkinski’s view, case conferences are effectively mediation by an experienced family law judge at no cost to the public.
“I don’t want to be critical of case conferencing,” says Winkler. “But people say that there are too many of them and they are too expensive because there tends to be more than one.”
Indeed, Winkler’s proposal would redesign the entire system, although he’s still focusing on the idea of court-based mediation that’s free to the public rather than a process similar to the civil system in which parties pay for a private mediator and present the court with a certificate showing they’ve gone through it.
“I wouldn’t see it as duplicating the case conferencing or adding another step to the process,” Winkler says. “I am not saying that we should take the present system and insert mediation.
I propose redesigning it from the bottom up. After an educational session, after the parties have received full disclosure, after they have got representation, then have mediation upfront.
I would put the judges who now do case conferencing into the mediation or it could be done by pro bono lawyers, masters or social workers. There is no magic as to who would do it. We would use the available resources.”
But Lenkinski thinks it would be a step backwards to take away case conferencing. “It would slow down everything,” she says. “Judges would no longer be running case conferences, which I believe are tremendously useful.
The judges are very responsible about reading the material,
assisting the parties, and offering ongoing conferences to assist.
There are some difficulties because they have too many cases on their dockets, but in my experience, judges go out of their way to work through lunch and stay late and to give other dates to assist. The judges are doing a really good job in the publicly funded system.”
Lenkinski’s proposal is for a mandatory education system that covers alternative dispute-resolution methods in detail. “Right now, lawyers are required to sign a certificate to say they have advised clients about ADR.
I wonder if clients, being emotionally upset in a lawyer’s office, are necessarily absorbing all the information they should be absorbing.
A public session that makes that clear might be better. At present, when people file for divorce, they are invited to see a movie that is geared to the least sophisticated and has little impact.”
Lenkinski also proposes that parties have expanded access to social workers, psychologists, lawyers, chartered business valuators, and accountants.
“In health care, when there is a significant diagnosis, a patient gets a multidisciplinary lecture from all the individuals involved in his or her care.
Family law clients should have immediate access to a panel of professionals who can tell them what happens and assist them to try and resolve without significant litigation.”
With people receiving better education and advice, then, Lenkinski expects more litigants would choose mediation voluntarily. As a result, mandatory mediation wouldn’t be necessary.
For more on this issue, see "Winkler calls for 'fresh' approach with expanded mandatory mediation."