Law Times

PAGE 10 FOCUS May 2, 2011 • Law TiMes FSCO seeks outside help with mediation backlog Situation 'intolerable and affects the rights of all accident victims in Ontario' BY JUDY VAN RHIJN For Law Times mission of Ontario emerged in 2010, internal efforts to address the problem have had little ef- fect, leaving FSCO to turn to external providers in an attempt to deal with an unprecedented increase in applications for alter- native dispute resolution. Charles Gluckstein, chair- A man of the insurance committee for the Ontario Trial Lawyers As- sociation, has been monitoring this issue for the past year. "The situation is intolerable and affects the rights of all accident victims in Ontario. The requirement to fter problems with me- diation times at the Fi- nancial Services Com- mediate an issue before choosing to litigate or arbitrate adds un- necessary delay if the mediation cannot be held within a reason- able time." So far, FSCO has attempted to resolve the matter through in- ternal measures but is now look- ing to external service providers for assistance. In early 2011, a request for information went out to ADR providers to determine the availability of private-sector mediation services with the req- uisite capacity and expertise. The posting has now closed and a review of the responses is under- way, but there will be staff and stakeholder consultations before any final decisions on engaging external service providers. Still, it seems defence lawyers would prefer a bit more urgency and a bit less caution. Gluck- stein, however, isn't even sure that the introduction of private mediators will be enough. "Un- fortunately, the volume of dis- putes with insurers has increased exponentially since the changes to the [statutory accident bene- fits schedule] last September, and the solutions proposed will likely do little to reduce the backlog for several years. The government is going to have to either invest substantial resources to improve the mediation system at FSCO or consider more immediate solutions to the backlog which may drastically change the way mediations are conducted." Adam Wagman, managing partner at Howie Sacks & Henry Alternative Dispute Resolution Workshop mediation and negotiation skills Toronto June 7-10, July 12-15 or August 9-12 Ottawa July 26-29 This program has been accredited by the Law Society for 27.5 hours toward the annual Professionalism Requirement and the New Member Requirement. "Role plays are certainly better than listening to endless lectures. I was never bored and always won- dering what was next. I loved the role plays." - Colleen Arsenault, Lawyer Beard Winter LLP All attendees earn a Certificate from 1.800.318.9741 | www.adr.ca | contact@adr.ca Untitled-2 1 4/27/11 11:03:04 AM LLP in Toronto, calls the situa- tion an "unmitigated disaster." "It's my understanding that despite the pilot project, the backlog continues to grow," he says. "It is taking in excess of nine months to get a mediation date. From a litigation point of view, nine months doesn't sound too long, but you have to remember that this is a man- datory precursor to even start- ing litigation or arbitration. If you look at the problem from the perspective of the treatment people need today and their in- come-replacement needs, nine months is far too long. Some- thing has to be done." Wagman believes the prob- lem is systemic in many ways. "The major issues are the lack of mediators and the lack of time set aside for them to do mediations. Frankly, I think they could probably do more than the two mediations a day that they are assigned to do." Laura Hillyer, a personal in- jury lawyer at Martin & Hillyer Associates in Burlington, Ont., hasn't noticed any improvement in wait times since the introduc- tion of the internal measures. She feels the delays are having serious and detrimental physical and psychological impacts on her clients. "There are delays in the administrative process anyway, and then you wait so long for mediation. If you have had your treatment plan denied and have to resort to the formal process, it is really detrimental in terms of care unless you can pay for it out of your own pocket." The association has written to FSCO and suggested many pro- posals such as failing mediations on consent when it's clear that the process won't resolve the dispute. Although Hillyer isn't intellectu- ally in favour of agreeing to dis- agree if there's any opportunity to settle, she's interested in the idea of an agreed-upon fail in certain cases. She gives the example of a case in which the lawyer thinks a client has sustained a catastrophic impairment but the insurer says no. "The lines are drawn fairly quickly and mediation is very likely to fail," she says. 'It's my understanding that despite the pilot project, the backlog continues to grow,' says Adam Wagman. But Wagman notes the agreed- upon fail has happened informal- ly for some time. "The problem is that you need a mediator to assist in that process because the media- tor still needs to write a report. It's not just a matter of agreeing that nothing will be served by medi- ating. If you pick up the phone with the insurer's representative for three minutes and say that we agree we need to fail, the mediator has to be part of that." He notes that despite the direction in the Insurance Act requiring prompt appointment of a mediator, that doesn't usually happen for about seven months. "We don't have anyone to assist us in that process even if there's absolutely nothing we can accomplish," he says. While Wagman believes FSCO mediators are experienced enough to know when it's a waste of time to force the parties to me- diate, he doesn't believe the com- mission is in favour of agreements to fail. "The mediators like to be involved in a process to bridge the gaps," he says. At the same time, Wagman doesn't blame FSCO entirely for the problems if it doesn't have the resources to hire enough mediators. Still, he argues it has a statutory requirement to do a lot more than is happening now. "When push comes to shove, an application for mandamus forc- ing FSCO to mediate may well be successful," he notes. "More than an assessment –the new standard." Recording specs are Willits v. Johnston compliant. All exhibits and reports fully compliant with 53.03 of the Rules. www.asa-assessments.com Untitled-2 1 www.lawtimesnews.com 4/21/11 3:25:58 PM Digital LT.indd 10 4/29/11 11:28:53 AM

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