It’s been a long time since there was an evaluation of the effectiveness of the Ontario Mandatory Mediation Program.
Even though new areas of law fall under the program and the volume of court claims has increased, the number of mediations and mediators in the program has declined.
Some mediators are having trouble getting enough work as the program falls into disuse, despite its continuing ability to deliver settlement rates above 50 per cent.
“In all fairness, the process is 16 years old,” comments Bruce Ally, a mediator and arbitrator based in Toronto still on the OMMP roster. “If we have mediation that’s legalized, it should provide quality of service and public accessibility.”
Ally is calling for a re-evaluation of the OMMP, not because it isn’t working but because it has deteriorated in reputation and effectiveness since its inception.
“We need to keep this fire burning,” he says. “We need to oil the cogs.”
Ally recalls that, initially, the OMMP was set up to provide a quick process for claimants. “They are now booking long trials in 2018. No one is getting to the resolution piece as quickly as they had been. There must be a way to assist that process, perhaps by having a task force created. Mandatory mediation needs to be looked at and redesigned to be more suited to the current time,” he says.
The only evaluation of the OMMP took place roughly two years after it was introduced, confirms Brendan Crawley, a spokesman for Ontario Attorney General Madeleine Meilleur. That was a comprehensive independent evaluation that accounted for parties’ satisfaction with mediation outcomes, he says.
“A substantial majority of litigants indicated satisfaction with the overall mediation experience and said they would use it again if they had a choice in the matter,” says Crawley. “The Ministry has not conducted another evaluation in respect of the mandatory mediation program since the 2001 evaluation.”
Ally says he and fellow mediators find the program to be a “wonderful thing.”
“From a statistical perspective, more than 60 per cent of matters settle. The reality is that if it was working by chance it would be 50/50. If it’s higher than 50 per cent, it’s working by design, not by chance.”
Ally states that the success of the program is even better than the statistics show. “Plaintiffs and defendants are using mandatory mediation as a rubber stamp to fail mediation so they can move on.
“In other matters, some people want to go through the whole process of discovery and examination before mediation so they can be fully prepared. Then they can do their risk analysis and make an informed decision,” he says.
However, it is still Ally’s opinion that the process needs to be reviewed. He is concerned at the substantial decline in the number of mediators on the roster.
“Initially, when it came out, everyone and their friend got on the roster. There were about 300 mediators at one point and there are less than 150 in Toronto now. A significant amount of people dropped off, some from attrition, and some because they found it’s not the gravy train they thought it would be,” he says.
He notes mediators can drop off because of the kind of work they’re getting.
“The roster has gained a stigma — you get a private mediator or you go to the roster and get rubber-stamped. Also, private practice is becoming very specialized while mediators on the roster are generalists,” he says.
He says the rate of pay for mediators has not changed in 16 years while overhead costs and the cost of living have gone up.
“Mediators are getting off the roster because they can’t afford to stay on,” he says.
Ally also recommends that the issue of self-representation be addressed in any reforms. “Mediation is wonderful for the self-represented, but the self-represented have no concept of the law. They think it’s about fairness when it’s really about rules,” he says.
He has observed that people don’t understand the steps involved in mandatory mediation or how to put together a statement of issues.
The Ministry of the Attorney General recommends that parties who are represented should work with their lawyers to prepare for a session that will be co-operative and productive, and it offers general information on the Mandatory Mediation Program on its web site.
Ally suggests that an education component needs to be introduced into the system. “The family law model for education might be one option, or something more informal, like an online video that walks them through the entire process,” he says.
He also proposes a redesign of the structure of the system given the increasing number of areas being added to the program.
“They’ve added family mediation, construction mediation, child protection mediation, and estate mediation,” he says.
He anticipates condominium mediation may well come under the program in the future.
“Toronto has become condo city. Disputes about condominiums will increase exponentially,” he says.