Court-ordered mediation: It is time? | Ryan Wozniak

By Ryan Wozniak

Law360 Canada (June 7, 2022, 9:52 AM EDT) --
Ryan Wozniak
The COVID-19 pandemic has shone a bright light on the tattered sinews of our civil justice system. The current state of civil litigation in Ontario — i.e., crushing delays and interminable procedural hang-ups — requires that we reconsider the policy rationales underpinning the existing jurisprudence prohibiting court-ordered alternative dispiute resolution (ADR).

In this author’s view, romanticized notions of court-centric justice and sacrosanct procedural rights must give way to the harsh reality that, within our present milieu, many of those “rights” are effectively illusory for the average court user. As the Supreme Court of Canada said eight years ago in Hryniak v. Mauldin [2014] 1 S.C.R. 87, at paragraph two, the “balance between procedure and access struck by our justice system must come to reflect modern reality and recognize that new models of adjudication be fair and just.” (emphasis added)

In this vein, we can learn a lot about how to do this by studying other jurisdictions. Take Australia, for example. Australia has been leading the charge in the realm of ADR for the past quarter-century. By the end of the 1990s, most states in Australia had introduced legislation giving courts the power to order non-consensual mediation, or “court-referred alternative dispute resolution” (CADR). “ Australia now has a robust mediation market with virtually no civil case going to trial without at least one round of mediation” (Annual Report of the Supreme Court of Victoria, 2009 -2010: 46).

Perhaps the most dramatic ADR scheme was that introduced by the New South Wales legislature to abolish the long-established Workers Compensation court. It was replaced by the Workers Compensation Commission using a mediation-arbitration process. A key feature was the use of mediators as arbitrators instead of members of the historically combative workers’ compensation bar. According to Australian mediator and arbitrator Greg Rooney, the “adversarial culture changed immediately because of the cultural alignment between the Med/Arb process and practising mediators acting as the arbitrators”.

Critically, the Australian judiciary has embraced CADR. In a 2017 study titled “Court-Referred Alternative Dispute Resolution: Perceptions of Members of the Judiciary,” which involved a survey of 104 judges sitting in various jurisdictions throughout the country, the Australian Institute of Judicial Administration found that the judiciary had a positive view of CADR and found that it contributed to court efficacy.

In Remuneration Planning Corp v Fitton [2001] NSWSC 1208, at paragraph three, Justice John Hamilton (as he then was) of the New South Wales Supreme Court found that, “This is an area in which the received wisdom has in my experience changed radically in a period of a few months … since the power was conferred upon the Court, there have been a number of instances in which mediations have succeeded, which have been ordered over opposition.” (emphasis added)

However, the conventional wisdom in Ontario is that it is wrong to force an unwilling litigant to mediate. Our tendency towards litigation bias is exposed when one considers the following scenario: Assume there is a lawsuit in which the defendant is passionately arguing that the parties should mediate, and the plaintiff is equally adamant that the parties should litigate. Do we say that the plaintiff should not be compelled to negotiate against its will? Or do we say that the defendant should not be forced to fight against its will? I posit that the immediate impulse of most lawyers in Ontario is to side with the plaintiff.

The merit of such traditional approaches is becoming increasingly less compelling. According to Rooney, the 20th-century western commercial model of top-down fixed black letter contracts enforcing risk transference has been challenged by the far more nuanced modern reality of “interconnected commercial space.” The main drivers of this new reality “are the need to sustain commercial and individual relationships, embracing a sustainable balance between risk and reward, seeing conflict as an opportunity for change and valuing the importance of soft management skills to bring everything together.”

As the experience of our Commonwealth cousin demonstrates, when litigants are required to spend sufficient time together inside a legal safe zone, as opposed to being forced to fight out in the open where egos and reputations are far more exposed, the motivation to compromise can overcome even the most stubborn parties. And even if a resolution is not achieved at a mediation, the parties will have had to undergo a harsh “reality check” and confront the unvarnished reality of their positions. Importantly, this need not end the matter: in Australia, courts are able to order a second round of CADR if it is in the interests of justice to do so, such as where a party fails to mediate in good faith.

It is beyond dispute that ADR, and in particular, mandatory mediation, serves as a crucial relief valve for our civil courts. However, mediation is currently mandatory in only three Superior Court jurisdictions: Ottawa, Toronto and the County of Essex. I suggest that this must change. If our provincial parliament will not enact or incentivize alternative and progressive means of dispute resolution, then it falls to the judiciary to mobilize them, such as by invoking the superior court’s inherent jurisdiction to control its own processes.

Below the mainstream political discourse is a rapidly accelerating undercurrent of anti-institutional sentiment. Ever-increasing court costs and the epidemic of self-representation only feeds the public’s growing mistrust in our public institutions. As lieutenant governor of Ontario, Elizabeth Dowdeswell, said in 2021, “This pandemic has laid bare for all of us the reality of inequity in our society.” If we are to curb this disturbing trend, then we must rediscover the spirit of institutional innovation and participatory democracy.

Fundamentally, lawyers and judges must look the Supreme Court of Canada’s “culture shift” decree in Hryniak directly in the eye and ask themselves: do we possess a genuine desire to consider alternative models of adjudication, or not? The Supreme Court has pressed our faces firmly against the glass. Will we choose to explore what is on the other side, or will we continue looking the other way? Will the pandemic be a catalyst for much-needed reform, or will it simply tighten the Gordian knot that is already choking out access to justice?

Ryan Wozniak is the principal of Wozniak Law P.C. He practises civil litigation in Toronto.

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