Is there a role for judges in mediating and facilitating settlement of disputes in Ontario’s court system, and if so, what should that role be? This was the fundamental question answered, on a high level, when the Ontario Bar Association’s long anticipated task force report on judicial dispute resolution (JDR), “A Different ‘Day in Court’ The Role of the Judiciary in Facilitating Settlements” was released in July (the “Report”).
Beginning in 2011, the OBA task force, of which I was a part, reviewed how JDR was handled in a variety of other provinces across Canada, and how it was taking place currently in Ontario. We consulted with representative experts from many different provinces, most sections of the OBA, and a variety of external stakeholders. An OBA Policy Day on JDR brought speakers and stakeholders from around the country and Ontario together to discuss the issues. Our background review revealed a startling variation in JDR design and usage from province to province, with everything from ad hoc informal models to highly regulated rules-based models, but even the rules-based models were of very different design and philosophy.
In Manitoba, an ad hoc informal procedure for requesting JDR from the Court by letter has developed. In Ontario, a wide variety of ad hoc procedures exist with few formal rules or regulations JDR takes place in pre-trial conferences, chambers meetings, judicial referrals etc.) and there are no training or accreditation requirements for judges who mediate. In many provinces, pre-trial processes are used erratically, by some judges for settlement discussions, but by others for trial management purposes or a blend thereof. Referral to a form of judicial settlement conference is available in B.C., Saskatchewan, Newfoundland and New Brunswick, but B.C. has a growing use of private mediation as well through a Notice to Mediate process in various courts (administered through Mediate BC). Both Quebec and Alberta have very mature systems of JDR, having focused on dispute resolution using judges for more than 10 years, with less focus on private sector mediation. Alberta chose to develop a large menu of JDR options, many of which have a strong evaluative focus, including the use of judicial mini trials and evaluative mediation. Quebec. However. developed interest-based mediation models as the primary approach to JDR (though in practice, individual judges may still use evaluative techniques to varying degrees).
The Report recognized and affirmed the value and success of the Ontario Mandatory Mediation Program (OMMP), a system of private sector mediation, and the special situation created in Ontario by that program’s existence. In Ontario, the OMMP was designed to target early mediation and resolution (ideally first 180 days of the case), whereas most JDR systems in other provinces targeted late stage cases at the pre-trial or later point. Any move to implement JDR needs to complement and not detract from the existing OMMP system, one of the most proactive and mature ADR systems in the world. Because it is an early mediation program, OMMP clears the “low hanging fruit” (the easily settled cases) from the system early, leaving only the more challenging cases in the system for the judiciary or others to manage.
The primary conclusion of the Report is that JDR, if implemented correctly and appropriately, can be a useful tool to add to the Ontario Court’s menu of dispute resolution options, supplementing and complimenting OMMP. The greatest value for JDR lies in those cases where a) an evaluative opinion by a judge may be needed to break an unresolved deadlock and other methods have failed; and b) parties cannot afford a private mediation.
In particular, there may be late stage cases that have already been mediated and failed, and are now heading towards trial, in which case JDR may offer a last affordable kick at the settlement can, with the added impetus of judicial gravitas/evaluation and an imminent trial date. It is worth noting that late stage cases also give judges a much better evidentiary record to which they can apply their evaluative toolkit. If judges mediate too early in a case’s life, it would be much more difficult and ethically problematic for a judge to apply evaluative analyses and approaches without a suitably matured evidentiary record from full discovery.
The task force recognized both the potential advantages and disadvantages of JDR approaches. Any JDR system should be designed to capture those advantages and to deal with the disadvantages appropriately. As noted in the Report, the main potential benefits include:
- Enhanced effectiveness (due to judicial gravitas and knowledge);
- The satisfaction of getting one’s “day in court” by a more productive means;
- Greater focus on the issue by counsel (due to the judicial eye on counsel);
- Affordability (to the parties, though there is still a cost to the system in supplying JDR);
- Greater process powers for the mediator (to compel production, make orders etc.); and
- The potential for enhanced enforceability of settlements.
Potential concerns that need to be dealt with in any JDR system that is designed include:
- The risk of coercion of the parties (both intended and unintended);
- The danger of “Justice Light” (effectively adjudication without an evidentiary record and protections);
- Confidentiality protection- especially in smaller towns;
- Decreased Effectiveness (if judges are untrained or too heavy handed);
- Conflict of interest- if a judge’s goal becomes, even in part, to clear one’s trial list;
- Perception of fairness- if there contradictions arise between judicial opinions received in JDR and ultimate trial results;
- Departure from the judicial role and transparency (which makes many judges nervous about caucusing for example);
- Variable desire of the judiciary to mediate (not all judges are keen);
- Resource limitations– JDR requires facilities, people to administer, training for judges etc.;
- Compellability of JDR judges as witnesses;
- Immunity of JDR judges from claims;
- How to deal with unrepresented parties, and their desire/need for legal advice (balancing facilitator neutrality with public policy protection and a Court’s duty to uphold the law); and
- Establishing jurisdiction for the JDR process.
In my view, the single biggest concern in the above-noted list is the risk of judicial coercion, even unintended. Having trained many judges in mediation over the years, I believe that well-trained judicial mediators would not normally intend to coerce, but judicial words carry great weight. There is a risk that parties may settle not because it is the best or the right answer for them, but because the judge has expressed a view on the rights that they are loathe to press back on. Any JDR mediator needs to be well trained to look for party interests as well as their rights, and to stay attuned to the risk of unintended coercion.
The ultimate recommendations in the OBA Report were high level ones, with the anticipation that the OBA would be consulted further and in more detail, if and when the Court decides to formalize any JDR procedures. The devil will be in the details of how JDR is implemented, so we strongly encourage the Court to consult widely and thoroughly before designing any JDR system.
That being said, the Report makes the broad recommendation that JDR be considered for implementation in Ontario, and that it be:
- Voluntary (by party choice);
- A separate dedicated process with appropriate time allotted for realistic exploration of settlement;
- Regulated with a clear access procedure;
- Filtered by a gatekeeper function to ensure that JDR is reserved for appropriate cases;
- Done only by judges with a high level of ADR training (The OBA ADR Section recommended training requirements similar to ADRIC’s Chartered Mediator requirements);
- A system in which parties can choose which JDR judge they get; and
- Done only by judges that are genuinely interested in and willing to do JDR.
The concept of a separate JDR option/step that would occur just prior to a pre-trial was highly thought of, as long as it was allotted an appropriate time for full and frank settlement discussions (the ADR Section recommended a minimum of 3 hours for such a process). Shorter pre-trials could then be devoted purely to the trial management function for any cases still unsettled.
What takes place in Ontario now is the hands of the Court and the Ontario government. We will be watching keenly, and hope that they consult widely with the Bar and the ADR community before beginning any JDR system design process.
As an aside, one very positive and unexpected offshoot of the task force already is that the OBA ADR section responded to the concerns about affordability of mediation that were raised. The ADR Section has been working with Pro Bono Law Ontario over the past year to kick start development of a pro bono mediation program that will be run by PBLO. That service will hopefully provide free mediation (to qualified parties) while also creating new mediation opportunities for the mediation community.
For a copy of the OBA report, see: Link
See also the Law Times story: LinkPaul Godin :: About Author :: Email