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Focus: Time to re-evaluate the Mandatory Mediation Program

Focus on: Alternative Dispute Resolution
It’s been a long time since there was an evaluation of the effectiveness of the Ontario Mandatory Mediation Program.

Even though new areas of law fall under the program and the volume of court claims has increased, the number of mediations and mediators in the program has declined.

Some mediators are having trouble getting enough work as the program falls into disuse, despite its continuing ability to deliver settlement rates above 50 per cent.

“In all fairness, the process is 16 years old,” comments Bruce Ally, a mediator and arbitrator based in Toronto still on the OMMP roster. “If we have mediation that’s legalized, it should provide quality of service and public accessibility.”

Ally is calling for a re-evaluation of the OMMP, not because it isn’t working but because it has deteriorated in reputation and effectiveness since its inception.

“We need to keep this fire burning,” he says. “We need to oil the cogs.”

Ally recalls that, initially, the OMMP was set up to provide a quick process for claimants. “They are now booking long trials in 2018. No one is getting to the resolution piece as quickly as they had been. There must be a way to assist that process, perhaps by having a task force created. Mandatory mediation needs to be looked at and redesigned to be more suited to the current time,” he says.

The only evaluation of the OMMP took place roughly two years after it was introduced, confirms Brendan Crawley, a spokesman for Ontario Attorney General Madeleine Meilleur. That was a comprehensive independent evaluation that accounted for parties’ satisfaction with mediation outcomes, he says.

“A substantial majority of litigants indicated satisfaction with the overall mediation experience and said they would use it again if they had a choice in the matter,” says Crawley. “The Ministry has not conducted another evaluation in respect of the mandatory mediation program since the 2001 evaluation.”

Ally says he and fellow mediators find the program to be a “wonderful thing.”

“From a statistical perspective, more than 60 per cent of matters settle. The reality is that if it was working by chance it would be 50/50. If it’s higher than 50 per cent, it’s working by design, not by chance.”

Ally states that the success of the program is even better than the statistics show. “Plaintiffs and defendants are using mandatory mediation as a rubber stamp to fail mediation so they can move on.

“In other matters, some people want to go through the whole process of discovery and examination before mediation so they can be fully prepared. Then they can do their risk analysis and make an informed decision,” he says.

However, it is still Ally’s opinion that the process needs to be reviewed. He is concerned at the substantial decline in the number of mediators on the roster.

“Initially, when it came out, everyone and their friend got on the roster. There were about 300 mediators at one point and there are less than 150 in Toronto now. A significant amount of people dropped off, some from attrition, and some because they found it’s not the gravy train they thought it would be,” he says.

He notes mediators can drop off because of the kind of work they’re getting.

“The roster has gained a stigma — you get a private mediator or you go to the roster and get rubber-stamped. Also, private practice is becoming very specialized while mediators on the roster are generalists,” he says.

He says the rate of pay for mediators has not changed in 16 years while overhead costs and the cost of living have gone up.

“Mediators are getting off the roster because they can’t afford to stay on,” he says.

Ally also recommends that the issue of self-representation be addressed in any reforms.  “Mediation is wonderful for the self-represented, but the self-represented have no concept of the law. They think it’s about fairness when it’s really about rules,” he says.

He has observed that people don’t understand the steps involved in mandatory mediation or how to put together a statement of issues.

The Ministry of the Attorney General recommends that parties who are represented should work with their lawyers to prepare for a session that will be co-operative and productive, and it offers general information on the Mandatory Mediation Program on its web site.

Ally suggests that an education component needs to be introduced into the system. “The family law model for education might be one option, or something more informal, like an online video that walks them through the entire process,” he says.

He also proposes a redesign of the structure of the system given the increasing number of areas being added to the program.

“They’ve added family mediation, construction mediation, child protection mediation, and estate mediation,” he says.

He anticipates condominium mediation may well come under the program in the future.

“Toronto has become condo city. Disputes about condominiums will increase exponentially,” he says.

Comments   

0 # KATALYSTConflict Management 2016-04-20 19:34
For the mediator, providing a credible mediation process means becoming conversant with the issues, the history of the matter & discerning “where the parties are at” relative to main stumbling blocks. So, while the Rules require 24.1C briefs 7 days prior to mediation, briefs routinely arrive two days or even the afternoon before mediation. Lawyers are pressed to begin with, and may have been wrestling with a given matter for 3 to 5 years in some cases; accommodating this reality demands fast pedalling on the mediator’s part & sometimes abandoning other equally important work so mediation can proceed.
Previous comments are bang on; the program warrants a comprehensive review 16 years in! OMMP is valuable & only through a comprehensive review of its successes and faults can the legal / mediation community gain the required understanding for its improvement and, perhaps, expansion throughout the province. Undoubtedly, study and representation by LSUC & ADRIO will be required.
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0 # OMMP RatesLaura P 2016-04-19 09:55
Thank you for your recent article on the need for a raise in the Mandatory Mediation Program. As an administrator booking and scheduling mandatory mediations, I spend an inordinate amount of time contacting the parties, attempting to get dates to schedule the mediation and attempting to reach agreement upon locations to book the mediation. All of which the mediator is uncompensated for. It is not uncommon to spend in excess of an hour and a half to schedule a mediation with all parties. It would seem to me that by the time the mediation is set down and the mediator has conducted his or her matter, their viable rate would be considerably less than the hourly rate that is mandated. Despite this, I have seen the mediators in our group settling an exceedingly high amount of matters and helping many people. As such, it is my opinion that it is imperative that this program be enhanced in order for this program to continue.
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0 # Mr.Genghiz Khan 2016-04-14 17:12
Dear Ms. Van Rhijn, Thank you for your insightful article. As a Roster Mediator for over ten years I share the concerns expressed and alluded to by Dr. Bruce Ally. In my opinion, for a such worthwhile program it is heavily underfunded and has not received the kind of management that it should from the administrators and powers that be. The days of a two day trail are long gone and instead it is now ten days, Chief Justice Winkler said in 2009, “a two day trial is $40,000 per side”. It would be $200,000 per side for a ten day trail. The fact that mediation can relieve the burden of this financial strain as well as the pressure on an overburdened court system; are reasons why this program needs to be nurtured. According to Mr. Darryl Gonsalves, the settlement rate is at least 70% if not higher, as such it is my opinion that every action needs to be taken to retain all Roster Mediators including raising the rate to a livable standard compared with the private sector.
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