Law Times

Law Times • apriL 19, 2010 FOCUS PAGE 11 Bolstering ADR through civil law reform BY JUDY VAN RHIJN For Law Times A nother set of reforms has come into effect that changes the require- ments for mediation in the civil justice system in order to give litigators more room to choose the time and the mediator that will suit their clients best. New family law changes also purport to open up access to mediation and collaborative law. The new Rules of Civil Pro- cedure make significant ju- risdictional changes that will move more disputes into court mediation. The Small Claims Court jurisdiction has increased to $25,000, and as mediation is now part of the small claims process, litigants will have more access to it. The dispute limit for the simplified or stream- lined procedure is increasing to $100,000, bringing more dis- putes into the courts where there are masters to handle case man- agement and mediation. The rules no longer link case management to mandatory me- diation, which now must take place within 180 days after fil- ing the first defence. The parties can delay it by consent, but in Toronto, Ottawa, and Windsor, they can't get a trial date unless they've had mediation or at least filed the details of when it will take place. Toronto lawyer and media- tor Barry Fisher says the change clarifies timelines and provides for flexibility. "Mediation was originally all done early within six months as part of the case management scenario," he says. "There was a lot of displeasure. Lawyers felt the rules were telling people when and how they had to mediate and they got a court- appointed mediator if they didn't choose one themselves. Now the rules have changed to make me- diation occur closer to the pre- trial conference. This allows the lawyers to hone their case." Fisher sees the new regime as a compromise that has already produced positive results. "The number of roster appointments has plummeted and private ap- pointments increased. The suc- cess rate has also rocketed be- cause there is a direct correlation between success and choosing your own mediator." Paul Iacono, president of YorkStreet Dispute Resolution Group Inc., has also seen an im- mediate improvement from the change. "It is causing lawyers to focus on scheduling and timeta- bling, which is a good thing. In the area of personal injury law, counsel are planning out their files, deciding when discoveries should be done and how long after that mediation should take place. They are scheduling both events at the same time." Iacono also believes the chang- es highlight mediation as part of the court process. "Lawyers are conscious that the case is sure to go to mediation but might not get to a courtroom. They are thinking, 'How can I be more ef- fective at mediation?' More law- yers are asking me if they made a good opening or what they could have done better." An important skill for lawyers is being able to tailor the length of the mediation to the amount in dispute, especially given the gen- eral principle of proportionality within the Rules. "That principle is as desirable for mediation as it is for litigation," Iacono points out. "If it's a $25,000 case, it can't take all day. You might as well have a trial. Those disputes must be set- tled in an hour or two. It's up to counsel and the mediator to im- pose limits so that can happen." Iacono identifies focus as the key. "What's the issue?" he asks. "What are weaknesses the strengths and of each side? You need to sort that out quickly. The lawyers have to take control and make decisions and appropriate offers based on a risk analysis of what's likely to happen if it is de- cided in a courtroom." Iacono has also observed that the lawyers who are most suc- cessful at mediation also know how to conduct a trial. "Before you can be a peacemaker, you have got to know how to wage war," he notes. The other area of recent re- form with implications for me- diation came from last year's Family Statute Law Amend- ment Act, parts of which came into effect on March 1. But Hilary Linton of Riverdale Mediation in Toronto is look- ing at the bigger picture. "I think the government wisely wants to promote the use of mediation," she says. "The ob- vious way in family law is to make more on-site mediation available across the province and to have government-sub- sidized off-site mediation, but there is no money to do that. They are limited to promoting it through marketing." Linton isn't critical of this approach, however. "If the at- torney general is promoting it more broadly, talking it up or even just putting it higher on the web site, it shows it as a more credible option and will have a big impact. There still isn't nearly the awareness of me- diation in family law that there should be. I believe the attorney New rules making it easier for people to choose their own mediator are helpful, says Barry Fisher. general is marketing it as one of the obvious first steps, which makes sense." Collaborative law is also said to benefit from the reforms but only in the same indirect way. "It is a growing area for all the right reasons," says Linton. "It is a particularly sound way to cope with complex financial matters and personalities that require a lot of management. Most of us feel that it is long overdue for the attorney gen- eral to promote both as alter- natives to going to court." One provision of the reform package that may also have an indirect effect on mediation and arbitration is the increased amount of work required to support a custody application. The rule states that every per- son applying for custody or access will complete a sworn statement setting out the facts and circumstances that relate to the child's best interests. "The new affidavit require- ment introduces an enhanced level of evidence," Linton says. "That makes the process cum- bersome and more expensive, especially for the self-represent- ed. It makes the greater and earlier use of mediation more attractive." LT DOES YOUR CASE LAW RESEARCH ONLY GIVE YOU PART OF THE PICTURE? Only Westlaw® Canada links directly from your case to all relevant cases, expert analysis, case comments, pleadings, motions, facta, quantum digests, words & phrases and the CED. Get Better Results Faster with Westlaw® Canada www.westlawcanada.com Untitled-6 1 www.lawtimesnews.com 4/13/10 11:01:09 AM

• Cover
• Restricted Mobility
• Paying The Piper
• Focus On ADR/Mediation