Ontario Chief Justice Warren Winkler raised an important issue this week at the Opening of the Courts ceremony.
Calling for a “fresh conceptual approach to resolution of family disputes in Ontario,” Winkler said it was time to consider introducing mandatory mediation for family law cases.
“I question the slow and steady approach of fine-tuning and rationalizing the present system,” he said. “Rather than incremental change, perhaps it is time to consider a more dramatic and pragmatic revision of the manner in which family law services are delivered across Ontario.”
His envisioned changes would mean that “only in the event that the alternative dispute resolution process is unsuccessful would access to the costly, time-consuming, adversarial, and sometimes acrimonious court process be made available to litigants.”
Winkler’s remarks are refreshing. Given that mandatory mediation for family law cases is already a reality in other jurisdictions, it’s time for Ontario to have a full discussion on it as one way of possibly speeding up an area of the justice system long plagued by delays.
For a couple of years, Attorney General Chris Bentley has touted and introduced measures to respond to those concerns, but maybe it’s time to act in a more radical fashion. Of course, given that the government has yet to even make mediation in civil cases mandatory across the province, it’s obvious that we could be doing more.
Of course, as with anything, there are concerns about making fairly radical changes. Critics of mandatory mediation have pointed out, for example, that while going that route has the lofty goal of keeping cases out of the courts and can thereby save litigants time and money, success rates are lower when parties do it as a required step than when they do it voluntarily.
Some statistics, in fact, put settlement rates at 50 per cent or less in mandatory cases as opposed to up to 75 per cent in voluntary ones.
Feminist groups, meanwhile, raise concerns about mandatory mediation, particularly given the power imbalances that can put women at a disadvantage in defending their legal rights in that setting rather than in court.
That concern is especially present in cases where domestic violence is a factor. Mandatory mediation is obviously inappropriate in those instances, but can the system properly screen them out? Will women seeking child and spousal support get their full entitlements in a less adversarial setting?
In addition, the idea of mandatory mediation raises concerns about issues like discovery given that it may be harder to get full disclosure about a spouse’s finances under that process than under the heavy hand of court proceedings.
Will litigants be able to get proper valuation of assets through their own experts? Is mediation, which tends to favour joint custody arrangements for the children in family law cases, not suited for particularly acrimonious disputes between spouses?
What about the cost? Will mandatory mediation simply add another layer of expensive proceedings that make divorce even more costly when cases go to court?
There are ways of dealing with many of these issues that courts elsewhere have tried. In the Los Angeles Superior Court, for example, mediators, who are court employees, don’t cost the litigants anything.
At the same time, improving legal aid would go some way to addressing cost issues and power imbalances. So potential solutions to make mandatory mediation a viable option are there. Kudos to Winkler for starting the discussion.
- Glenn Kauth
