Law Times

Law Times • apriL 11, 2016 Page 9 www.lawtimesnews.com Time to re-evaluate the Mandatory Mediation Program BY JUDY VAN RHIJN For Law Times I t's been a long time since there was an evaluation of the effec- tiveness of the Ontario Man- datory Mediation Program. Even though new areas of law fall under the program and the volume of court claims has increased, the number of me- diations and mediators in the program has declined. Some mediators are having trouble getting enough work as the program falls into disuse, despite its continuing ability to deliver settlement rates above 50 per cent. "In all fairness, the process is 16 years old," comments Bruce Ally, a mediator and arbitrator based in Toronto still on the OMMP roster. "If we have me- diation that's legalized, it should provide quality of service and public accessibility." Ally is calling for a re-evalua- tion of the OMMP, not because it isn't working but because it has deteriorated in reputation and effectiveness since its inception. "We need to keep this fire burning," he says. "We need to oil the cogs." Ally recalls that, initially, the OMMP was set up to provide a quick process for claimants. "ey are now booking long tri- als in 2018. No one is getting to the resolution piece as quickly as they had been. ere must be a way to assist that process, perhaps by having a task force created. Mandatory mediation needs to be looked at and rede- signed to be more suited to the current time," he says. e only evaluation of the OMMP took place roughly two years aer it was introduced, confirms Brendan Crawley, a spokesman for Ontario Attor- ney General Madeleine Meilleur. at was a comprehensive inde- pendent evaluation that account- ed for parties' satisfaction with mediation outcomes, he says. "A substantial majority of liti- gants indicated satisfaction with the overall mediation experi- ence and said they would use it again if they had a choice in the matter," says Crawley. "e Min- istry has not conducted another evaluation in respect of the mandatory mediation program since the 2001 evaluation." Ally says he and fellow me- diators find the program to be a "wonderful thing." "From a statistical perspec- tive, more than 60 per cent of matters settle. e reality is that if it was working by chance it would be 50/50. If it's higher than 50 per cent, it's working by design, not by chance." Ally states that the success of the program is even better than the statistics show. "Plaintiffs and defendants are using man- datory mediation as a rubber stamp to fail mediation so they can move on. "In other matters, some people want to go through the whole pro- cess of discovery and examination before mediation so they can be fully prepared. en they can do their risk analysis and make an in- formed decision," he says. However, it is still Ally's opin- ion that the process needs to be reviewed. He is concerned at the substantial decline in the num- ber of mediators on the roster. "Initially, when it came out, everyone and their friend got on the roster. ere were about 300 mediators at one point and there are less than 150 in Toron- to now. A significant amount of people dropped off, some from attrition, and some because they found it's not the gravy train they thought it would be," he says. He notes mediators can drop off because of the kind of work they're getting. "e roster has gained a stig- ma — you get a private mediator or you go to the roster and get rubber-stamped. Also, private practice is becoming very spe- cialized while mediators on the roster are generalists," he says. He says the rate of pay for mediators has not changed in 16 years while overhead costs and the cost of living have gone up. "Mediators are getting off the roster because they can't afford to stay on," he says. Ally also recommends that the issue of self-representation be addressed in any reforms. "Mediation is wonderful for the self-represented, but the self- represented have no concept of the law. ey think it's about fairness when it's really about rules," he says. He has observed that people don't understand the steps in- volved in mandatory mediation or how to put together a state- ment of issues. e Ministry of the Attorney General recommends that par- ties who are represented should work with their lawyers to pre- pare for a session that will be co- operative and productive, and it offers general information on the Mandatory Mediation Pro- gram on its web site. Ally suggests that an education component needs to be intro- duced into the system. "e fam- ily law model for education might be one option, or something more informal, like an online video that walks them through the entire process," he says. He also proposes a redesign of the structure of the system given the increasing number of areas being added to the pro- gram. "ey've added family medi- ation, construction mediation, child protection mediation, and estate mediation," he says. He anticipates condominium mediation may well come under the program in the future. "Toronto has become condo city. Disputes about condomini- ums will increase exponentially," he says. LT FOCUS ON alternative dispute resolution FOCUS Bruce Ally says a re-evaluation of the Ontario Mandatory Mediation Program is needed. We are a law fi rm that combines experience, leadership and teamwork. We align best practices with fl exibility and pragmatism. 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