Law Times

Page 12 March 31, 2014 • Law TiMes www.lawtimesnews.com Bar seeks leadership on judicial mediation But call for change among many challenges facing the court FOCUS n 2013, the Ontario Bar As- sociation turned the spotlight on the role of the judiciary in facilitating settlements with a call for Ontario to catch up with other provinces that have suc- cessful judicial dispute resolution systems in place. In sending the report to all of the chief justices and the civil rules committee, the OBA has sought to move the issue forward. It's now waiting to see if there will be the will or the means to implement any of the proposed changes. Ontario has many forms of judicial mediation. Its civil courts boast a hybrid system of dispute resolution by judges or private mediators with judicial involvement being mostly in- formal. e OBA report laments the fact that Ontario's rules don't provide for a separate procedure aimed solely at judicial assistance with settlement discussions, nor do they specify the judge's role in facilitating settlement. It raises particular concern about the lack of an established process for accessing judicial dispute reso- lution, a fact that makes it dif- ficult for inexperienced lawyers with no personal connections to judges and virtually impossible for self-represented litigants. Mohan Sharma, counsel in the office of the chief justice of the Superior Court of Justice, notes the report on judicial mediation recommends a dedicated pro- cess, either by rule amendment or practice direction, whereby par- ties can request a specific judge to conduct a dispute resolution session or mediation. It also rec- ommends establishing discrete settlement and trial management conferences under the Rules of Civil Procedure. Sharma con- firms that Regional Senior Justice Geoffrey Morawetz is looking at the feasibility of the OBA's recom- mendations as part of his review of civil proceedings in the Grea- ter Toronto Area. "e Superior Court of Jus- tice is awaiting the completion of . . . Morawetz' review before it can consider adopting the OBA's recommendations more broadly. Several other factors must be ca- refully assessed and weighed be- fore the court can decide to redi- rect limited judicial resources, as the OBA proposes. For example, in Toronto, Ottawa, and Wind- sor, mandatory mediation before a private mediator conti- nues to provide a forum for a cost-effective and timely resolu- tion. e timing of any new judi- cial mediation would have to be carefully considered, along with a careful assessment of available judicial resources." Former justice Colin Camp- bell, currently of Neeson Arbitra- tion Chambers in Toronto, used mediation extensively during his judicial career. He believes that as a result of the OBA report, there's some consideration of changes in the judicial branch but notes its first priority is trying to alle- viate the long wait times before trial. "Most judicial mediation is occurring when parties are very close to trial to the extent that judges have the time and the inclination. Here's the basic problem: it's one of resources, the question of where the judges spend their time. ere are long court lists, especially in the crimi- nal and family courts. e dimi- nished resources get allocated to court cases first." It appears there's little urgency on the matter given that judicial mediation is available infor- mally. "In most regions, informal processes already exist whereby parties may request a second pre- trial conference before a judge to fully consider settlement and/ or trial management issues. Such requests are almost always ac- commodated," says Sharma. Jane Warwick, a spokeswo- man for the office of the chief justice of the Ontario Court of Justice, has a similar view. "Although the report focuses on non-family civil matters and does not pertain to the jurisdic- tion of the Ontario Court of Jus- tice, our judiciary has had much success with judicial case mana- gement in family law cases, which focuses our litigants on settlement and provides early and cost-effec- tive resolution of cases." e civil rules committee received the report at its Janua- ry meeting for informational purposes. "As the report notes, there are positives and negatives to the notion of judicial media- tion," says committee secretary John Kromkamp. "It may come back before the next meeting in late spring if any of the members take a particular interest. ere was not a chorus of people suggesting amend- ments in January." e Ministry of the Attorney General's position is that since the report's focus is on using ju- dicial scheduling and resources to facilitate settlement, these matters are largely at the discre- tion of the judiciary. It may be that the measures will remain low on the prior- ity list until a judge takes up the cause as an advocate, something that has occurred in other prov- inces that have established a for- mal procedure. ere's no doubt former Ontario chief justice Warren Winkler wanted to move the judicial mediation program along and it's unclear whether his replacement, whoever that will be, will have a similar agenda. Lawyer David Sterns, co- chairman of the OBA judicial mediation task force, doesn't believe the impetus must come entirely from the judiciary. "e judiciary and the government have a role to play. ey both sit on the civil rules committee and both deal with budgets. So they both need to work with the bar to achieve the optimal process for fair results and effective use of resources." One possible source of enthu- siasm for the process is the Cana- dian Conference of Judicial Medi- ation (CCJM). It meets biannually with the aim of developing inte- grated judicial mediation systems in all areas of law. Former Quebec Court of Appeal justice Louise Otis is part of the force behind the movement towards judicial me- diation in Quebec. She describes judicial mediation as "a new fun- damental of modern justice." "By creating the CCJM, we aim to harmonize all our systems and create a dialogue," she says. She stresses that the aim isn't to have the same system in every province. "e courts should re- spond to the needs of the public in each province. In Alberta, law- yers and citizens appreciate get- ting the opinion of a judge, like a mini-trial. Quebec respects the classical form of mediation. e judge is a mediator, not an adju- dicator. Judges never express an opinion on the case. In Ontario, they do not express an opinion but they press people to settle." If the Ontario way contin- ues to remain at the inclination of individual judges, the OBA is still seeking to focus judicial facilitation resources where the characteristics unique to the judiciary or a particular judge make that the superior choice. As the report states, judicial dispute resolution can provide an evaluation from a judge and unrepresented parties with the feeling that they've had their day in court. LT Subscribe today to the ultimate source for today's legal profession! Keep up-to-date and informed for only $75 a year. To order your copy visit www.canadianlawyermag.com or call 416.609.3800 or 1.800.387.5164 SUBSCRIBE TODAY AND RECEIVE: r JTTVFTDPOUBJOJOHVOCJBTFESFQPSUJOH BOEBOBMZTJTPG$BOBEBTMFHBMMBOETDBQF r '3&&FYDMVTJWFBDDFTTUPUIFCanadian Lawyer EJHJUBMFEJUJPOBOEEJHJUBMFEJUJPOBSDIJWFT r '3&&XFFLMZFOFXTMFUUFSm$BOBEJBO-FHBM/FXTXJSF FEJUFECZUIFTBNFFEJUPSTUIBUDSFBUFCanadian Lawyer FREE Digital edition included! Untitled-3 1 14-02-25 2:49 PM The court and the government 'need to work with the bar to achieve the optimal process for fair results and effective use of resources,' says David Sterns. BY JUDY VAN RHIJN For Law Times I

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