TLA generally approves of using mandatory mediation at relatively early stage in the litigation
The Toronto Lawyers Association has said that it approves of the potential expansion of the Mandatory Mediation Program and of the one-judge model throughout Ontario.
“Where matters have been (or will be) mediated pursuant to s. 258.6 of the Insurance Act, we believe those matters should be exempt from mandatory mediation under Rule 24.1,” wrote Brett Harrison, president of the TLA, in a letter addressing the Ministry of the Attorney General’s proposed reforms to the provincial civil justice system. “We believe that the remainder of the current exemptions to Rule 24.1 (as set out in Rules 24.1.04 (2) and (2.1)) should be maintained.”
The TLA indicated its support for the use of mandatory mediation at a relatively early stage in the litigation process, once the parties have acquired sufficient information and are prepared to negotiate and to compromise. Mandatory mediation may assist in the early resolution of certain types of civil disputes, such as when the case is not document-intensive or when there is no significant factual dispute, the TLA said. However, in other cases, mediation at an early stage is not appropriate, such as when there is a need for evidence to be disclosed or for damages to crystallize, the TLA said.
The TLA disapproved of the idea of requiring mediation before filing an action with the court because doing so may prevent a party from initiating a case before the expiration of the limitation period, may prevent parties from obtaining sufficient documentary disclosure before mediation, may act as a financial and procedural obstacle to access to justice and may result in forestalled litigation. Moreover, mandatory mediation would not fit well with proceedings involving Mareva injunctions, Anton Pillar orders or issues of whether Ontario has jurisdiction over the action, the TLA said.
The TLA recommended maintaining the requirement for each party to pay an equal share of the mediator’s fees, which it called fair.
The TLA also supported the proposed expansion of the one-judge model, which it said would boost efficiency and would discourage interlocutory sparring. The TLA opined that the court may apply this model to all civil proceedings, and that the consent of the parties to the application of this model should not be necessary.
The TLA, however, suggested exempting parties from the one-judge model if they have chosen to participate in mediation at a very early stage. If the parties do not reach a settlement, then the subsequent proceedings in court will utilize the one-judge model, the TLA said.
The TLA said that, while, for most proceedings, a single judge can adjudicate all aspects of the proceedings from beginning to end, the involvement of another judge may be appropriate in certain situations, like if there is an allegation of bias against a certain judge or if the appellate court has directed that a particular issue should be retried by another judge. Moreover, a separate judge should hear the pre-trial stage, the TLA said.