Law Times

Law Times • OcTOber 18, 2010 FOCUS FSCO mediation system in crisis BY JUDY VAN RHIJN For Law Times resolution process is already col- lapsing in on itself, the likely increase in matters arising from new auto insurance reforms is a crisis waiting to happen. As of June 30, the Financial W Services Commission of Ontario was struggling with a fourfold in- crease in cases involving accident benefi ts and had 14,000 matters pending. Th is, of course, has had a dramatic eff ect on assignment and wait times for mediation. With the system designed so that all cases go through FSCO mediation before any litigation, arbitration or private dispute resolution can take place, people have found themselves waiting for long periods. Michael Kelly, a personal in- jury lawyer in Hamilton, Ont., says that in the past few years, wait times have increased to nine or 10 months from just a couple of months. "Th e wait to a hearing after that is not too bad, only a couple of months," he notes. "It's the mediation that has the real backlog." FSCO has been trying to deal with the problem internally. Ear- lier this year, its dispute-resolution services branch launched a review of its policies and procedures with a committee formed to identify ways to improve effi ciency in the mediation process using input from internal and external stake- holders, including people in the insurance industry and legal com- munity. Possible options raised during the initial discussions included fast-tracking and settle- ment blitz days, but the changes now taking place mainly involve getting the mediators to increase the number of mediations they do while introducing electronic fi ling to help them do so. Th e fi rst change, the media- tion pilot project, has just begun and will run for six months. It's expected to show an increase in the number of mediation meet- ings held. Th e second one, the electronic meeting schedul- ing pilot project, will create an automated online system for booking and managing media- tion sessions without involving mediators. Th is change, which is under development and is ex- pected to be available in 2011, will allow them to spend more time on mediation itself. While the hope is that these measures will have some impact on the backlogs, practition- ers worry that disputes over the new auto insurance reforms will only add to the system's woes. "I'm sure they will," says Kelly. "Each time there's a new system, there are always disputes over the wording, as well as what's in- cluded and what's excluded." As a result, private mediators are now calling on the govern- ment to open up the service to ith lawyers reporting that the insurance industry dispute- the private sector in the same way it did with mandatory me- diation for civil litigation. Cliff Hendler, formerly of Dispute Resolution Services LP and now, since a recent merger, with ADR Chambers, thinks that would be a great idea. "Th ere is no reason why they couldn't expand the concept employed in civil litigation to the FSCO," he says. "Courts and governments have allowed private mediators to fi ll the need there. All those parties have to do is certify that me- diation took place." Despite his enthusiasm, Hen- dler is realistic about the likeli- hood of any change happening soon. "Conceptually, it's easy to do but in practice it is harder because the regulators have to go through the unions and a dif- fi cult process to make those sort of changes. It might take a legis- lative change." Nevertheless, Hendler strong- ly believes the problem is serious enough to require such a change. "Absolutely, I do," he says. "Peo- ple in disputes with insurers need access to decisions early on. Mak- ing the parties wait for months is not good for the public. If the FSCO said it would open up the system, we at ADR Chambers would defi nitely assist." Deborah Anschell, a mediator on the insurance panel at ADR Chambers, also endorses the idea of private mediators taking up the slack but suggests the govern- ment do it by contracting out to the private sector. "Th e FSCO model is relatively new. It's good Gilbertson_LT_Oct19_09.indd 1 10/13/09 3:15:03 PM that it's accessible at fi rst instance and free of charge to consumers. We need to admit that it's not working eff ectively as opposed to dismantling it and waiting for legislative change." LT ructured_LT_Sep13_10.indd 1 9/8/10 4:39:43 PM dmitchell@structures.ca president PAGE 11 Clients and Counsel who know Insurance, know us... So should you! Call us or visit our website for more information. 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Prices subject to change without notice, to applicable taxes and shipping & handling. LT1018 www.lawtimesnews.com The Honourable James M. Flaherty and Catherine H . Zingg Insurance Act Arbitration Automobile Insurance Insurance Act Judicial Act Financial Review Procedure S ervices Commission Act Act, Ontario Statutory of Powers 1991 Act, Compulsory 1997, Procedure Act

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