‘Great judicial mediator’ set to retire

As he gets set to retire on Dec. 10, Ontario Chief Justice Warren Winkler plans to focus on one of his passions, alternative dispute resolution, after he leaves the bench.

Among his post-retirement activities, he’ll be spending time at the new Winkler Institute for Alternative Dispute Resolution at Osgoode Hall Law School as a distinguished visiting professor. It’s fitting given his record of success in using mediation in high-profile matters, including the Air Canada restructuring case and a dispute between Ontario Hydro and its power workers. He maintains his faith in mediation despite his disappointment at the breakdown of talks in the Nortel Networks Corp. bankruptcy proceedings.

“I’m disappointed whenever anything doesn’t resolve,” he says of the Nortel matter, a case highly criticized for racking up massive professional fees, including for legal services.

At a time when the profession is expressing major concerns about growing motion and trial delays in civil matters, Winkler suggests mediation was a successful tool for resolving the issue when he was the regional senior judge of the Superior Court in Toronto. When he took on that job in 2004, the court had about 40 cases outstanding as the fall session approached, he says, noting the wait time for trials was approaching 37 months. “We were totally bogged down. We reduced the time for trials to on demand,” he says, crediting efforts to make mediation of those cases more effective by bringing in judges with expertise in the area of law at stake right with dramatically cutting the backlog.

“My recollection is we settled them all,” he adds, calling that period “the worst year of my professional life, frankly, bringing about all of those changes.”
Paul Pape, an appellate lawyer at Pape Barristers Professional Corp., says Winkler has a knack for helping parties reach consensus because of his high emotional intelligence. “He’s got the EQ and it’s a large reason that he stands out as a judge,” says Pape, who has appeared before Winkler on several occasions.

“He’s got the mastery of the common touch,” he adds, noting Winkler has always shown a great ability to understand people and what their “real interests are.”

Roy Filion, senior partner at what had been Winkler Filion and Wakely before Winkler’s appointment to the bench in 1993, says his former colleague’s skills at resolving matters were evident in his role as a negotiator. “He was a great negotiator,” says Filion, now of management-side labour and employment firm Filion Wakely Thorup Angeletti LLP. “To be a good mediator, you have to be a good negotiator because mediators have to understand negotiations.”

From his role as a negotiator, Winkler moved on to establishing his reputation for judicial mediation, Filion adds. “One of the many elements of his legacy would be as a great judicial mediator and advancing the practice of judicial mediation beyond what it was in the past,” he says.

For his part, Winkler remains optimistic some of the justice reforms he has been calling for since becoming chief justice in 2007 will become reality. “When I started talking about access to justice 6-1/2 years ago, I was really a pioneer,” he says, noting his big emphasis on fixing the delays and cost concerns in family law. “Everybody knows these are the issues, but people have tightly held views on this,” he says, referencing proposals to deal with the issue such as triaging matters, mandatory mediation, and better disclosure.

“We’ll get there,” he adds. “I’m confident we’ll get there on the family law because we’ve made so much progress.”

But when it comes to the ongoing challenge of access to justice and, particularly, the difficulties in cases like the Nortel matter, Winkler is clear that cultural issues are at play. “What it is is the litigation mentality where you always try to get the maximum success out of a dispute. That’s a cultural problem,” he says.

“There’s such a thing as winning too much . . . because you leave a trail of disaster behind you,” he adds.

Asked about other reforms to reduce court backlogs, Winkler mentions the need to simplify the procedural rules and provide mechanisms to get matters to trial faster. “If the trial date is imminent . . . they don’t have time to have motions,” he says.

“Time leads to more litigation,” he notes.

As far as his legacy goes, Winkler suggests he made big strides on transparency at the court. For example, he introduced the Court of Appeal’s annual report and brought a more celebratory flavour to the annual opening of the courts ceremony. “Instead of being a boring thing where we talk about statistics, it’s celebratory,” he says.

In addition, Winkler says he made many efforts to increase the court’s accessibility by speaking at events across the province and meeting with lawyers and law students. “That’s part of my legacy is this outreach, this openness. . . . When I was a lawyer, we didn’t know anything about this place.”

As for his future plans — besides his involvement at the Osgoode institute — the Pincher Creek, Alta., native expects to continue doing mediations and will also spend more time at his property in Markdale, Ont., that in some ways takes him back to his roots. “It’s like rural Alberta,” he says.

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