Small claims court mediation program leads to fair outcomes, participants say

The Winkler Institute for Dispute Resolution revealed the data collected by its partnership with the Osgoode Mediation Intensive Program and the Osgoode Mediation Clinic throughout the 2018 to 2019 academic year.

The partnership involved law students in the Osgoode Mediation Intensive Program and in the fall course, Theory and Practice of Mediation, participating in small claims court mediation at the Sheppard and Brampton courthouses.

After receiving training at the beginning of the school year, the students, under the guidance of the program’s coaches, conducted mediations on weekday mornings at the two courthouses.

The students deemed 65 out of 70 (or 83 per cent) of mediations as fair to all participants, with the proportion roughly even among the two courthouses. They also identified several factors that are critical in ensuring fairness in mediations. These were: maintaining impartiality, treating the parties equally, providing a thorough explanation of the mediation process and emphasizing its voluntary nature, answering clarifying questions about the process and adapting the mediating process to address power imbalances.

According to the Winkler Institute’s annual report, throughout the academic year, a total of 78 mediations were completed at the two courthouses — 53 at Sheppard and 25 at Brampton. These mediations had an average length of 98 minutes, with a total of 25 settlements achieved. The average settlement amount was $4,614.38.

At the Sheppard courthouse, 25 per cent of mediations had both parties represented, 58 per cent had one party represented and 17 per cent had both parties unrepresented. Meanwhile, at the Brampton courthouse, 16 per cent had both parties represented, 36 per cent had one party represented and 48 per cent had both parties unrepresented.

“Participating in the Small Claims Court program has been one of the highlights of my legal education,” said a student at the Osgoode Mediation Clinic. “Having the opportunity to engage with real litigants and diverse legal issues was incredibly rewarding. Parties were happy with the level of control they had in mediation.”

The mediations were in the following areas of law: contracts, debt collection, landlord-tenant, property damage and employment/wrongful dismissal. Caucusing was the most popular tool for the student mediators, having been used 83 per cent of the time.

“As I left small claims court that day, I overheard the parties negotiating in the hallway. I doubt that the parties would have even spoken to each other, let alone negotiate, if they had not gone through mediation,” the student added.