Task force seeks clarity on judicial mediation

Ontario’s current pretrial system is ineffective when it comes to using judicial resources to arrive at a settlement, according the Ontario Bar Association’s task force on judicial dispute resolution.

In its first report released this week, the task force recommends separating the judicial settlement facilitation process from the pretrial component under the Rules of Civil Procedure.

Pretrial conferences in Ontario should, with consent of the parties, involve two sessions that deal with trial management and a possible settlement individually, according the report.

In Ontario, every trial must first undergo a pretrial conference, says David Sterns, one of the authors of the task force report.

“Because of the dual function there, most people approach pretrial conferences not knowing what to expect and not being sufficiently prepared,” he says.

“And counsel really can’t adequately prepare because it could go in the direction of managing the trial, which is the opposite of settlement, and it could go in the direction of a settlement, which is the opposite of managing a trial.”

It’s not the best use of the judiciary’s input on settlements, adds Sterns, noting that aspect shouldn’t be “an afterthought” in a pretrial conference.

“We think there is just a lot of judicial resources that are being devoted to a pretrial function that has outlived its usefulness,” he says.

“We are now at a time where the mediation/settlement process has become more sophisticated. It’s not an afterthought. It shouldn’t be relegated to the last question as you’re walking out of a pretrial conference. So we’re recommending that there be splitting of the pretrial conference into a settlement discussion if parties want it or a pure, focused trial management process but they not be blended.”

Toronto litigator Earl Cherniak agrees with the task force’s suggestion. “They have it right,” he says.

“Two completely different functions ought not to be done by the same person. Case and trial management should be done by the trial judge as is the case in all commercial arbitration. The trial judge or arbitrator cannot be involved in mediation or settlement negotiation . . . but has an obligation to do what he or she can to effect an efficient trial. This is the everyday stuff of what commercial arbitrators do, starting with the initial conference with counsel, and continuing throughout.”

James Morton, head of the civil litigation group at Steinberg Morton Hope & Israel LLP, also feels pretrials are “wasted” because counsel don’t know what to expect. But Morton worries that splitting the pretrial conference into two separate processes may add to the already-overtaxed court’s workload and therefore increase costs and create delays.

“My concern is perfection being the enemy of the good,” he says. “Most cases in the civil courts are fairly small and most cases in the civil courts are very routine. Cost is a major issue and access to justice is impacted every time there’s another step you have to take.”

While the voluntary nature of the task force’s recommendation alleviates some of these concerns, the option of getting a separate meeting for a settlement discussion and trial management should apply only to claims worth more than $250,000, Morton adds.

The judicial dispute resolution process in Ontario is a tricky area for many lawyers. While Ontario judges do facilitate mediation, there’s no formal way of accessing that system.

“It happens, but you’ve got to kind of know how to get it,” says Sterns.

“One of our recommendations here is that since these are public courts and judicial mediation is effective in some cases and everybody seems to acknowledge that, then there really has to be a transparent mode of accessing it. There should be some parameters that are widely accepted about when and how it should take place.”

Other Canadian provinces have more formal judicial dispute resolution systems. With possible access through the recommendation of the chief justice, Quebec has a robust structure for judicial dispute resolution, says Sterns. But he notes the OBA task force refrained from adopting a specific province’s system because of Ontario’s unique position when it comes to mediation.

“Ontario starts from a different perspective in that we have here a very vibrant private mediation bar and they have really developed an international reputation for effectiveness and I think we’re leading the way in that regard,” says Sterns.

Still, many people seem to agree that a portion of cases could benefit from mediation facilitated by a judge. This is especially true when parties “intractably wedded to their own sense of justice” could benefit from “a reality check” someone with the authority of a judge can provide, according to the report.

“Where an otherwise clearly resolvable case is eluding resolution because of a client’s refusal to take a lawyer’s good advice on settlement or a client’s insistence on his ‘day in court,’ a judge may be able to facilitate a settlement where others have failed,” the report states. But judicial gravitas is a double-edged sword, the report warned. While a judge’s presence may mean more efficiency, it can also intimidate the parties and lead to what in essence is a coerced settlement.
Judges who facilitate mediation should therefore have training for such a role, according to the report.

Judicial pretrial conferences are also a good alternative for litigants with limited means, the report noted. In fact, they may mean more litigants will have counsel as they’d have a more concise retainer than one required for a trial.

“Clients who are unrepresented because they cannot afford a lawyer have the most potential to benefit from judge-led dispute resolution as it (a) is a free dispute facilitation process; (b) has the trappings of a day in court that a judge brings; and (c) provides an objective evaluation of their case that they may need and that they will likely recognize as authoritative,” the report states.

The task force also found a surprising and perhaps ironic added bonus to this form of dispute resolution: Since “less sophisticated” litigants may not be aware of the benefits of mediation and would like their day in court, appearing before a judge would be particularly important for them.

The OBA task force suggests further consultation with stakeholders before drafting specific rules and procedures for judicial dispute resolution.

For more, see "Crafting consistent approach to judicial mediation."

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