Is It Even A Pilot Project 24 Years Later?: The Case For Mandatory Mediation Across Ontario – Arbitration & Dispute Resolution

Lawyers practicing any form of litigation know that mediation
can be a client’s best friend. It’s an efficient,
effective, and fair mechanism to resolve clients’ differences
in a timely way. In 1999, the Ontario Mandatory Mediation Program
established a pilot project to test the advantages of mediation by
making it mandatory for most civil litigation matters in Toronto,
Ottawa, and Windsor. That’s right: 1999 – 24 years
ago.

To be fair, there have been minor adjustments. The Rules of
Civil Procedure have been amended to provide for mandatory
mediation in contested estates, trusts, and substitute decision
matters, but again, only in Toronto, Ottawa, and Windsor. This
leaves much of the vast backlog of cases currently before Ontario
courts without placing any obligation on the parties to explore the
possibility of a mediated solution.

This is despite the overwhelming empirical evidence that
mediation works.¹ It allows parties to craft their own
resolution, considering their specific priorities and interests,
which may have little or nothing to do with the strict application
of legal principles. It allows both parties to feel they have
“won” or at least that they have exercised their own
choice to hold their respective noses and agree to the best
alternative to the litigated option, i.e. permitting a third party
stranger to decide whether they are either a winner or
loser.²

For readers looking for statistics, the Ontario Bar Association
points to the significant reduction in the time taken to dispose of
cases; the decreased costs to litigants; and the general
satisfaction of stakeholders with the mediation
process.³ This is not to mention the relief of pressure
on the overburdened Court system, currently even more dire than
when the OBA made its submissions in 2020, early in the COVID-19
pandemic.

Mediation provides parties with a timely, fair, lower-cost
alternative to the stress and risks of continuing litigation. It
clears the Court’s docket for matters which cannot otherwise be
resolved and gives parties agency over their own legal destiny.
Given all these benefits, there is no reason for the provincial
government to wait for its “pilot project” to pass the
quarter-century mark. Mediation should be made mandatory for
litigants across the province as soon as possible.

Footnotes

1. There are, of course, situations where mediation is
not appropriate, including where there is a significant power
imbalance between the parties, a history of physical or mental
abuse, etc.

2. OBA Submission on LAO Modernization Project,
p. 10. This was a submission by the OBA to the Attorney General in
September 2020.

3. Ibid., p. 10-11.

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