Law Times

Page 8 April 8, 2013 Law Times • Focus On ADR Crafting consistent approach to judicial mediation OBA task force considering options for improving effectiveness BY JuDY VAN RHIJN For Law Times A s judges increasingly participate in dispute resolution efforts, there are few safeguards to protect the integrity of the system. But soon, a new report from an Ontario Bar Association task force on judicial mediation will consider some areas for improvement so that mediation can be a more effective option in the judicial toolkit. There's plenty of debate as to the merits and detriments of bringing judges into the dispute resolution field. Elena Mamay of Cambridge LLP has had extensive experience with judicial mediation in Europe and the United States and can advance the arguments for and against. She worked for the war crimes tribunal in Bosnia and Herzegovina and later went on to practise civil litigation in Boston. One of the advantages is the ability to select the judge who will conduct the mediation. "The judge appointed to the trial might not know the area of law we are bringing before them," says Mamay. "Where the issues are important and the litigants are not in a position to pay for exorbitant legal costs, having an experienced judge with expertise in a particular field is a huge benefit. Judges focus on the fundamental legal issues. They dig through the debris and emotion and come out with a decision." David Sterns of Sotos LLP, who's co-chairman of the OBA task force along with Brian Finlay of WeirFoulds LLP, agrees that where parties won't accept anything said by a private mediator or a lawyer, there can be a case for judicial mediation. "A bit of gravitas can bring home to the party that their case is not as strong as they thought. Judicial mediation in some way satisfies the need to tell it to a judge and have their day in court. That's a function that's hard to replicate in any other environment." Mamay feels this aspect can also contribute to the main detriment. "The parties often felt forced into agreeing. Often, the interests they were trying to protect were broader than those involved in that particular litigation. At the end of the day, they had to weigh the financial benefit against those broad interests, their values, and other stakes." "Judges obviously carry a lot of weight," says Sterns. "What makes it so effective is that the judge carries not just one view but the opinion of the whole judiciary. Judges need to be sensitized to the force of the opinion received and how intimidating it can be." Sterns has observed a tendency among judges to foretell results, something that doesn't typically happen in private mediation. "They need training in facilitation so there is no overstating of outcomes," he says. In fact, the OBA task force didn't question whether the practice should be an option or not. "Judicial mediation goes on and has always gone on," says Sterns. "We didn't really consider whether it is a good thing or a bad thing because it is a reality in day-to-day litigation. The question is: When does it happen and how is it accessed?" The task force asked those questions of a broad cross-section of the practising bar and judges across Ontario and beyond in order to get updated intelligence on judicial mediation. "One thing we heard was that the pretrial conference is no longer working as intended," says Sterns. "Before private mediation became available, it was your best chance of getting a glimpse of how the trial might proceed. What's happened since is that the private mediation bar in Ontario has blossomed until it is second to none. No one wants to undo or reverse that progress, but there is still a vital role for judicial dispute resolution. Our desire is that it will dovetail with the private mediation bar that we have." be useful to some people but not to others. Currently, the pretrial offers settlement facilitation to parties who don't want it and fails those who do." Mamay recalls that in the U.S. jurisdiction in which she worked, the process wasn't mandatory but was available upon request. "I was the one who recommended it, then it was the client's decision. The main reason was the complexity of the issues, for example, 'If we make the ADR where it was not pure conprocess work better, tract law or immigration it will free up trial law but a bundle of issues interconnected with layers resources,' says David Sterns. of complexity." There's also a call for Sterns notes the focus comes greater transparency in how back to the pretrial conference judicial mediation comes about. because everyone has to go "The whole thing is a bit unprethrough that. "The pretrial has dictable," says Sterns. two very different roles. Firstly, "The parties make their wish there is the trial management for judicial mediation known process. You get the views of the and then it's a bit of a mystery judge as to how the trial can be which cases are selected." The more efficient and how the par- report will recommend that the ties should best prepare for it. trial management aspect remain After that, they may encourage mandatory followed by a more settlement. Some judges treat focused dispute resolution opit as the primary function and portunity offered to those who some as an afterthought. This need it. creates great uncertainty for law"This is not to say that judicial yers and clients. It's completely mediation will come into play different in how you prepare and when the case is ready for trial at conduct yourself and the client's the last minute," says Sterns. role is different, too. It's like get"We don't want to close the ting ready to go to the ballet and door to early-stage judicial finding it's a wrestling match." mediation attempts. If we can The consensus from the bar achieve bifurcation of the prewas that the pretrial conference trial conference, we will take the should be split in two. "Trial focus that exists in the current management is essential to a system and make it more effecgood pretrial conference," says tive and transparent. If we make Sterns. the ADR process work better, it "The settlement aspect may will free up trial resources." LT Recruiting? Post your position on Great rates. Great reach. Great results. Contact Sandy Shutt at sandra.shutt@thomsonreuters.com for details. www.lawtimesnews.com JobsInLaw 1/4 pg 5X.pdf 1 2/15/11 4:18:54 PM

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