Law Times

LAW TIMES / APRIL 21, 2008 Professional Appraisal Opinions - Trusted Values Find a professional real estate appraiser Matrimonial www.oaaic.on.ca 416-695-9333 Focus On ADR / MEDIATION Pilot project meets many of its goals T Winkler says make rule 78 permanent BY HELEN BURNETT Law Times tive pilot project for Toronto has been evaluated and, according to lawyers and mediators, it has met many of its goals. But some also suggest there are other changes that could be made for the future. The "less structured" case man- agement options of rule 78 — a pilot project introduced by way of practice direction for Toronto by then-regional senior Justice Warren Winkler — was designed to lessen the difficulties arising from the application of the previ- ous system under rule 77, which aimed for streamlined proceed- ings through strict deadlines for specific events, early and active intervention of the court, and frequent attendance by counsel. The project was introduced as a result of concerns about delays in the civil justice system in Toronto, including unacceptably long and growing wait times to obtain dates for interlocutory motions and tri- als, and rising costs associated with the number of steps and appear- ances in the early stages of a case. Under rule 78, parties are given he Superior Court's ini- tial three-year case-man- agement practice direc- and pretrial conferences sched- uled after the action is set for trial. Rule 77 is still available for specific circumstances or where there has been substantial delay. A steering committee, in- cluding members of the OBA, Toronto Lawyers Association, and Advocates' Society, has been in place since the project began. The Toronto case-manage- ment practice direction was re- cently renewed for another three years, until December 2010. In a report to Superior Court Chief Justice Heather Smith on civil case management in the Toronto region, Winkler, now chief justice of Ontario, found the "flexibility in the timing of mandatory mediation has greatly increased its effectiveness (which directly influences the case inventory in the court and reduces costs to the parties)," and with the three levels of me- diation the resolution rate before trial increased significantly. The report says that under rule greater responsibility for managing actions and moving them to trial or other resolution. All cases are sub- ject to mandatory mediation, and parties are encouraged to mediate at the earliest stage. But mandatory mediation has to begin within 90 days of the start of the action, as opposed to within 90 days after the first defence has been filed. Manda- tory mediation was also expanded to include simplified rules cases. Some other changes brought by rule 78 included partial or full case- management only where a need for the court's intervention is shown, 77, only 40 per cent of cases settled at the mandatory mediation stage. Following the rule 78 reforms, it notes there is no mechanism to collect data "because parties are just not reporting the results to the court," but the consensus is the flexible timelines have resulted in increased settlements at media- tion. Winkler also submitted that rule 78 be permanent. Speaking at an OBA program, he said what was previously wrong with the system was that it was too early, as the parties weren't ready. With the practice direction they had to change the timing, he said, to make mandatory mediation available at a time when "it was most likely to be effective." Winkler said a lesson from rule 78 is to keep the number of events in a piece of litigation to a mini Chief Justice Warren Winkler says if the pilot project were to expand outside of Toronto, it should be in Newmarket and Brampton where there is a need for rule 78. mum and to keep the rules simple, as complicated rules generate mo- tions. Another finding is "media- tion is a cornerstone of the justice system in this province," he said. If the pilot were to expand out- side of Toronto, he said, it should be in Newmarket and Brampton where there is a need for the rule. Jessica Kimmel, a member of going to let you go to trial with- out counsel reporting back that a mediation has taken place, but the court is allowing flex- ibility, which Kimmel says is the advantage of the way the rule was structured. She adds there haven't been any drawbacks over the last three years since the pilot was implemented. One of the benefits of rule 78, says Kathleen Kelly, execu- tive director of ADR Cham- bers, is the parties and counsel seem to attend mediation more in a frame of mind to get the case settled, as opposed to a necessary step that they have to go through to progress their ac- tion through the court system. However, when the proj- ect began, she says there was confusion among the court, the bar, and the mediation community regarding whether cases that were already in the sys- tem, pre-Jan. 1, 2005, still carried on under the old regime and had to go through mandatory media- tion at an early stage. "On the inception of the prac- Under rule 78, they're not the executive of the Toronto Law- yers Association, says that anec- dotally, lawyers' perspective on the project is that it's been successful. "The rule actually was struc- tured so as to provide flexibility in the time for mediation, while still requiring it to happen," says Kimmel. "I think, from the per- spective of the bar, certainly, that has actually proven to be quite productive in terms of making sure that when you do your man- datory mediation, it's done at a point in the case where you think there's . . . a reasonable shot at settling," she says. tice direction, which became rule 78, because of the very significant time change for the non-simpli- fied rules, non-wrongful dismissal actions, there was a very lengthy gap from cases that were initiated in January '05 until the manda- tory mediation would be held," she says. "So there weren't a lot of mediations going on in '05 and '06, relative to what was the status before," she says. "Essentially for everybody, it started getting really slow about mid-'05 and was slow until the spring of '06." Mediators who had been in the mediation community for a longer period of time and had established a reputation "suffered but not nearly as badly as newer entrants to mediation, and the simplified rules cases and the em- ployment termination cases were keeping a lot of people still active in the business," says Kelly. One change Kelly would rec- ommend to the rule is a mecha- nism put in place mandating that mediators be paid for their work, as this is not currently the case. In terms of the goals of the PAGE 9 project — including a reduction in delays and number of appearances required, as people didn't have to mediate within 90 days of the first defence being filed — it did meet its objectives, says Kelly. What she doesn't know is how many of the previous attendances were to obtain a "relaxation" of the time frame. The number of administrative attendances has decreased, resulting in cost savings for parties and time savings for the court, says Kimmel. Kelly notes that in December 2004 Winkler asked for a pool of senior lawyers to act as pretrial judges for rule 76 or simplified procedure cas- es, to get rid of a backlog and free up masters' and judges' time. That project, she says, "really made a big impact on clearing the backlog in the rule 76 cases." With rule 78, Kelly says, "We're now experiencing a relatively high proportion of cases that should settle and could settle, but for the legal fees that have been incurred because the mediation is held so far down the road from when the case was first commenced," she says. She says a concern is that while you can get trial dates, if two per cent go to trial and the others have to wait longer before mediation occurs, the expense of litigation has probably risen more for litigants than what was anticipated. "I think there's still some de- sign that can occur that would make it far more effective and more fair," she says. 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