Nicholas McFarlane
March 23, 2023
In this blog post, I will present the OBA’s compelling arguments for provincial mandatory mediation expansion from their proposal submitted to the Attorney General of Ontario. This post is intended to benefit law students, legal academics and policy makers who are researching the merits of provincial mandatory mediation expansion.
Specifically, the OBA proposes that Rules 24.1 and Rules 75.1 of the Ontario Rules of Civil Procedure be amended to expand mandatory mediation to the East, Central East, Central West and Southwest regions of Ontario.[1] Currently, the Ontario Mandatory Mediation Program (OMMP) is only implemented in the cities of Ottawa and Toronto and the county of Essex.[2] In support of this proposal, the OBA makes several convincing arguments.
One of these arguments is the historical success of the OMMP.[3] According to extensive studies, mandatory mediation in Ontario has resulted in significant reductions in the time taken to dispose of cases, decreased costs to litigants, a high proportion of cases being completely settled earlier in the litigation process, and considerable satisfaction on the part of lawyers and litigants.[4] Regarding early settlement, statistics reveal that 40% of cases referred to mediation resulted in settlement in the initial stages of the case.[5] Lawyers have also reported cost savings for their clients even for cases that did not settle because parties were forced to assess the merits of their case in the early stages of the litigation process.[6] In particular, these costs savings are significant because they help discredit objections to mandatory mediation.[7] Specifically, they weaken the view that mandatory mediation is an unnecessary additional litigation expense.[8] Another argument that the OBA cites for expansion is the general benefits of mediation.[9] In particular, the OBA’s proposal mentions the ability for mediation parties to tailor their own solution to their legal problem.[10] To this end, the OBA notes that many parties find mediation more satisfying than a trial because they play an active role in resolving their dispute, rather than having a solution determined by a judge.[11] In addition, the proposal suggests that mediation can help facilitate cooperative problem solving and improved communications, especially in situations where parties have an ongoing relationship.[12]
To further bolster their position, the OBA cites various surveys which indicate overwhelming support from the Ontario legal community for OMMP expansion.[13] Based on surveys from June/July and December 2019, approximately 90% and 70% of respondents respectively are in favour of OMMP expansion.[14] These surveys also indicate that mandatory mediation is popular with lawyers in existing mandatory mediation jurisdictions, and claims from different provincial regions are brought in these jurisdictions to enjoy the benefits of the OMMP process.[15] As a result, a “forum shopping” predicament is created where parties from non-OMMP jurisdictions bring claims in OMMP jurisdictions which increases their court backlog.[16] Based on these circumstances, it is apparent that OMMP expansion to new provincial regions can help alleviate that backlog.[17]
Finally, the OBA confidently endorses OMMP expansion in light of the province-wide mediation program already in place for Insurance Act motor vehicle accidents.[18] Given that a mediation program already exists provincially, expansion of the OMMP seems more plausible.[19] With these various arguments in mind, it is hoped that readers reflect on OMMP expansion in a positive light.
For more information on the OBA proposal, please see the OBA’s report, “The Voice of the Legal Profession: Expanding Mandatory Mediation in Ontario” (Ontario: Ontario Bar Association).
[1] Ontario Bar Association, “The Voice of the Legal Profession: Expanding Mandatory Mediation in Ontario” (Ontario: Ontario Bar Association) at 4.
[2] Rules of Civil Procedure, RRO 1990, Reg 194, Rule 24.1.04(1)(2.), 75.1.02(1)(a).
[3] Supra note 1 at 10-11.
[4] Ibid.
[5] Ibid at 6.
[6] Ibid at 7.
[7] Dorcas Quek, “Mandatory Mediation: An Oxymoron? Examining the Feasibility of Implementing a Court-Mandated Mediation Program” (New York: Cardozo Journal of Conflict Resolution, 2010) 479 at 498.
[8] Ibid.
[9] Supra note 1 at 10.
[10] Ibid.
[11] Ibid.
[12] Ibid.
[13] Ibid at 12.
[14] Ibid.
[15] Ibid.
[16] Ibid.
[17] Ibid.
[18] Ibid at 14.
[19] Ibid.