Canadian Forum on Civil Justice Forum canadien sur la justice civile


NEWSLETTER

Search form


Alternative Dispute Resolution Inventory

Year Title Jurisdiction Body Responsible Court Criteria and Methods of Evaluation Description Description of Reforms Development Links to Publications Publications Purpose Related Reforms Results Status Subjects Timeline
1971 Provincial Court of Alberta, Civil (Small Claims Court)

Alberta

Small claims court with a monetary jurisdiction of $25 000, employing pre-trial settlement conferences and mandatory mediation.

The Provincial Court of Alberta is a statutorily enacted Court intended to be an expeditious and inexpensive forum to access civil justice. Although the Court must apply established legal principles, it is not bound by the laws of evidence applicable to judicial proceedings and may admit any oral or written evidence that it, in its discretion, considers proper, whether admissible in other judicial proceedings or not, subject to claims of privilege under the law of evidence or any other evidence which is inadmissible by any other act. Accordingly, the procedural issues put before it are often determined according to principles of fairness or equity and not necessarily according to the strict rules of evidence as used in other courts. Litigants may be unrepresented, represented by agents, or by lawyers.

There are no formal Rules of Court governing the Court's procedure. The Act sets out most of the procedural requirements. Where the Act on regulations do not provide for specific practice or procedure, the Court may apply or modify the Alberta Rules of Court (Queen's Bench Rules) as needed. ...]

Hunt McDonald at 1.
  • Cases in the Court are heard by provincially appointed judges.
  • The monetary jurisdiction is $25 000.
  • Pre-trial conferences may be used to encourage parties to settle, or identify key issues if settlement is not achieved.
  • Cases may be referred to mandatory mediation sessions.

Permanent implementation

  • mandatory programs
  • mediation
  • Provincial Court of Alberta, Civil
  • settlement conferences
  • small claims court
1971 Modern Provincial Court established
2002 Most recent increase of monetary jurisdiction, to $25 000
1972 New Brunswick Court Social Worker Program

New Brunswick

New Brunswick Department of Justice

CSW's were evaluated as individual employees, with annual performance reviews. The Domestic Legal Aid program was evaluated in 1996, and was found to deliver services as intended. However, it was also found to be in need of better abuse assessment procedures, which were implemented in consultation with one of the evaluators.

New Brunswick Department of Justice program providing conciliation services in order to reduce conflict and minimize litigation.

For those who find themselves dealing with separation and divorce - whether before, during, or long after - Court Social Workers can provide counselling, information, and conciliation services for a wide range of issues, including parenting after separation, custody and access, child and spousal support, and division of simple and routine property and debts. They are also responsible for providing referrals for those who need, and are eligible for, the legal services of a Family Solicitor.

Court Social Workers can help people gain a better understanding of their situation and make plans for living apart that are fair, reasonable, and in the best interests of their children. Whenever appropriate, and if both parties are willing to participate in mediation, they can act as mediators to help the parties negotiate agreements that can then be made legal - thus making expensive legal action unnecessary. As mediators, they do not take sides. When mediation is not appropriate because of a history of abuse in the parties' relationship, they can offer other kinds of help that will not compromise a person's safety or security, such as special settlement services or a referral to a Family Solicitor for legal services (Webpage).

There were eight judicial districts where CSWs were located: Bathurst, Campbellton, Edmundston, Fredericton, Miramichi, Moncton, Saint John, and Woodstock. All CSW's were located in court services offices adjacent to courts. They also had private offices for interviewing clients for assessments. All were situated alongside other court services, for example Support Enforcement Services. Some had receptionist staff, but most did not. Clients were generally seen by appointment, but some walk-ins were accommodated. CSWs worked in partnership with the Domestic Legal Aid Family Solicitors who were also located nearby.

The CSW program was established to address the increase in clients seeking divorces. The program then shifted towards providing conciliation services in order to reduce conflict and minimize litigation.

After the creation of Unified Family Courts in 1982, the CSW program continued providing conciliation services in conjunction with the Court of Queen's Bench Family Division. In 1988, CSW's formally began offering family mediation services after funding for mediation training was provided by the Department of Justice. Eventually, the CSW program became a part of the Domestic Legal Aid Program, however, retained its separate funding and is a service provided to everyone (not just those who satisfy legal aid requirements). Furthermore, the breadth of services provided by CSW's was increased. Screening for domestic abuse situations was incorporated into the CSW program, and referral services addressing those issues were added. In 1996 onwards, extensive training in child support guidelines and calculation software (Childview) were incorporated. In 2001, paralegal type services were shifted away from CSW's to the solicitor assistants in legal aid.

In April 2009, the program was eliminated as part of budget cuts in the province. Prior to its elimination, CSW services resulted in 1300-1700 cases avoiding litigation.

Elimination of CSW Program
The program was eliminated in April of 2009, following the announcement of the provincial budget, as part of an attempt to reduce the budget by 5%. It is estimated cutting the program will save the province about $900,000.

Those seeking legal aid services related to marital separation and divorce matters will now have to apply directly to the Legal Aid Services Commission, without the assistance of a CSW.
 
Response to Elimination of CSW Program
"The elimination of this service goes against the international trend to invest in the social arm of family courts," said Elsie Hambrook [Chairperson of the Advisory Council on the Status of Women]. "The importance of favouring non-adversarial resolution of family disputes whenever possible is increasingly recognized. Mediation and the other services provided by the court social workers complement the judicial side of the court - they help people gain a better understanding of their situation and make plans for living apart that are in the best interests of their children, and often divert disputes from court hearings altogether. Some studies suggest issues settled by a couple through such means, not decided by a judge, "stay settled" longer."
"The court social workers offer a specialized service that is very valuable, especially to mothers facing separation. I fear that we will be reinventing this service in a few years, because it is a low-cost way to help families navigate and settle issues during the difficult time of a separation. This issue bears further study before the cuts go ahead" (ACSW).

 
The Liberal government's decision to eliminate court social workers will hurt the province's most vulnerable people, critics say...

Rosella Melanson, executive director of the Advisory Council on the Status of Women, said eliminating the program will end up costing the province in the long term. She said that, with the disappearance of court social workers, families will either live with unsolved issues, line up for legal aid or try to represent themselves in court, often without getting a result that is up to standard. "It's the elimination of the social arm of family court," said Melanson, who worked as a court social worker in the 1970s. "With the disappearance of court social workers, it seems that will reduce the non-adversarial settlement of these issues."

Elaine Bell, spokeswoman for the Department of Justice, said court social workers are not the only ones who provide mediation services. "More family lawyers are using a collaborative approach to resolving family law issues," she said in an email. "In all of the judicial districts formerly served by court social workers, other mediation services may also be found" (Telegraph).

Program Eliminated as of April 2009

  • alternative dispute resolution
  • New Brunswick Justice and Consumer Affairs
1972 Court Social Worker (CSW) Program established
1982 Unified Family Court established throughout New Brunswick
1988 CSW formally commenced mediation services
May 1993 CSW became central to the Domestic Legal Aid program
1996-1998 CSW's started to handle child support issues
April 2001 Paralegal work shifted to the family solicitor assistants, freeing up more time for CSW's to focus on mediation and referral services
March 2009 CSW program planned elimination announced in the provincial budget
April 2009 CSW program eliminated
1984 Manitoba Justice Child and Family Services Division: Family Conciliation

Manitoba

Manitoba Justice Child and Family Services Division

Court of Queen's Bench (Family Division)

A series of evaluations were conducted on the effectiveness of various different programs: Case Management, Parent Education, and Mediation. Two evaluations were conducted on the Parent Education program and reports were produced with recommendations on how the program could be improved. The mediation program was also assessed.

Manitoba Justice service providing legal information, appropriate referrals, court ordered assessments, counselling, and mediation to family law litigants.

Services to separating/divorcing families are provided to Winnipeg, Eastman, Interlake and Central community areas through the office in Winnipeg and to Westman, Parkland, and northern regions through Rural and Northern Services, Community Services Delivery Division.

Family Conciliation's objective is achieved through the following activities:

  • administration of Family Conciliation services which provide social services support to the Family Division of the Court of Queen's Bench, including information/referral, court-ordered assessments including brief consultation, mediation, conciliation counselling, group programs, Grand Relations and the Parent Information Program;
  • development and monitoring of program policies and service standards across the Province;
  • provision of training, consultation, and leadership in the development of regional services; and
  • consultation with other agencies, professionals and the public.

2007/2008 Annual Report at 81

Services offered include:
  • Brief Consultation Service offers brief consultation for families and children in a shorter time frame, focusing on the input of children ages 11 to 17 in custody/access matters that affect them. Additional information is provided in a consultative format for issues related to time sharing, child developmental needs, parental communication, and other aspects of parenting plans for children of all ages.
  • Court-Ordered Assessments provide comprehensive family evaluations, professional opinions, and recommendations to the court concerning the best interests of children in custody, access, and guardianship matters. This process serves as a vehicle for the resolution of custody/access/ guardianship disputes by providing information that can be used in settlement meetings, lawyer negotiations, or litigation as circumstances warrant. It serves parents, children, lawyers, and the court by recommending courses of action and available resources that may reduce parental/family conflict, which is harmful to children.
  • Mediation is a structured, short-term intervention to assist families undergoing separation/divorce in developing a parenting plan, to maintain a continuing relationship among children, parents, and extended family, and to protect children from parental conflict. This is a preferred intervention for resolving custody/access conflicts. Parents may also choose to mediate financial issues arising from their separation regarding child support, spousal support, and division of marital property. This comprehensive co-mediation is offered in the Winnipeg Region, and on a pilot basis in the Eastman Region. It is called co-mediation because a lawyer mediator and a family relations counsellor are both involved in the process.
  • Conciliation Counselling is a short-term, separation-related counselling focused on parents‟ and childrens‟ adjustment to family reorganization after separation/divorce. Conciliation counselling is also often used for special situations where a quick response may be required or in services such as Intake and Grand Relations.
  • Information/Referral is an intake service. Individuals and families are assisted in addressing issues and identifying possible solutions, informed of community and government services that may be appropriate to their situation, and are referred accordingly. They are also assessed for mediation and other Family Conciliation services and provided with advice and referrals.
  • Parent Information Program, “For the Sake of the Children," educates and focuses parents on the needs of their children in the context of separation and divorce. It is designed to help all separating parents, and is an essential first step to mediation. The program is mandatory for all parties seeking custody of or access to children through the court, including grandparents, other family members and significant others.
  • Children's Therapeutic Group “Caught in the Middle”, assists children ages 8 to 12 who are experiencing trauma, loss, and family reorganization after their parents separate or divorce. This 10-week session is designed for children living in families experiencing severe parental conflict.

  • Just for Teens, is an information group for children ages 12 to 17 whose parents have separated. This group program is aimed at helping this age group to adjust to their parents‟ separation/divorce and deals with family changes, feelings and grief, legal questions, questions facing teens and how to survive the separation of their parents. Peer support is an important aspect of this service.

  • Grand Relations, a range of services for improving access between children and extended family or significant others. These services were developed in response to an amendment in The Child and Family Services Act , and includes the mandatory “For the Sake of the Children” parent information program; First Choice a pilot of an Early Neutral Evaluation service for families requiring a court-ordered assessment; and the Grandparent Advisor. Research was also undertaken to identify best practices/models of alternative dispute resolution services for Aboriginal people to explore options in the possible development of a made-in-Manitoba model.

    • Grandparent Advisor Service was established in December 2006. A Family Conciliation Counsellor is dedicated to provide direct service to grandparents who are seeking access with their grandchildren, as well as to facilitate a monthly support group to assist them through this process.

    • The First Choice Pilot Project provides a confidential hybrid service of assessment, mediation, and counselling to help parents or extended family members to resolve their custody and access issues without going to trial. The service utilizes gender balanced teams and includes the parties‟ lawyers in the process. The service involves two stages assessment and mediation. The parties are provided with a preview of what a court-ordered assessment would likely focus on if the case proceeded to court. The team makes recommendations regarding custody and access arrangements based on the best interests of the children. The service provides an opportunity to settle custody and access disputes outside of court using the input of legal counsel. First Choice became a confidential service midway through the year, based on a recommendation from the initial evaluation of the project in 2009/10. The piloted phase of this project ended on March 31, 2011, when First Choice gained permanent program status.

  • Staff presentations on children and divorce to community organizations, and participation in various community and government committees. Presentations by the Grandparent Advisor to grandparent groups and others interested in Grand Relations services.

2011/2012 Annual Report at 90-91

 

"The Family Conciliation program is delivered through the Department's Community Service Delivery Division, and is the social services component of the Court of Queen's Bench, Family Division. Policy responsibility for Family Conciliation rests with the Strategic Initiatives and Program Support Branch, Child and Family Services Division" (Annual Report 2007/2008 at 81).

The Family Conciliation Services emerged in 1984 when the Unified Family Court was created. Some of the Family Conciliation services were integrated with the Court of Queen's Bench Act which was amended that same year. Since then, various slight modifications have been made, but the service has largely maintained its present form.

A review of family law in Manitoba produced some recommendations which resulted in some changes to the mediation program. The mediation program was expanded with Federal funding through a pilot project. The program proved to fulfil an identified need for families, and the pilot became an ongoing service.

The For the Sake of the Children program was added to the FC service in 1995, and expanded in 1997 after an evaluation. In April 2005, a symposium was held where the judiciary along with the legal community recommended that the parent education program (For the Sake of the Children) become mandatory. This recommendation was implemented on May 15, 2007, and a corresponding amendment was made in the Queen's Bench Rules.

The objective of Family Conciliation Services "is to ensure the availability of a range of high-quality dispute resolution services to families disrupted by separation or divorce, and where ongoing parenting of the children is of primary concern" (2007/2008 Annual Report at 81).

It was found that Comprehensive Mediation resulted in 90% of cases being settled out of court. Regular mediation had a 65-85% success rate. The evaluation concluded that the success of comprehensive mediation can be attributed to the parties' willingness to cooperate and it usually takes place at an earlier stage in the divorce proceedings. In regular mediation, there are a wider variety of factors at play and the parties are often at various stages of their divorce, or have already divorced but are back again dealing with support, access, or custody issues.

As a result of the evaluations, the For the Sake of the Children was expanded from a 3 hour program to a 6 hour program and made mandatory. Furthermore, the Child and Family Services Act was amended to address the needs of grandparents and their grandchildren, and allow the court to order a wider range of custody and access solutions. Flowing from that, the Family Conciliation service programs have been modified to include grandparents and changes were accordingly made to the Court of Queen's Bench Rules on May 15, 2007.

Activities/Highlights in 2010/11
In 2010/11, Family Conciliation Services provided the following high quality services:

  • Information and referral 2,268 clients.
  • Parent Information Program – “For the Sake of the Children” – 6,652 clients.
  • Conciliation counselling services 5 clients.
  • Mediation services 380 families
  • Court-Ordered Assessments 186.
  • Brief Consultation Services 81 families.
  • Children‟s Therapeutic Groups – 26 children.
  • Grand Relations Services 37 families regarding access between grandparents and their grandchildren, 195 information calls, plus 20 regular attendees at the monthly Grandparent Support Group.
  • First Choice Pilot Project 83 families.

2011/2012 Annual Report at 91-92

Permanent Implementation

  • Court of Queen's Bench of Manitoba
  • family law
  • legal services
  • Manitoba Justice
  • mediation
1946 Amendment made to the Child Welfare Act which included a provision for five family counselors for the court
1968-1969 Family Conciliation Services transferred to the Department of Social Development
1984 Unified Family Court established and rule changes made to the Court of Queen's Bench Act dealing with procedures regarding the Family Conciliation Service
1992 BC Child Protection Mediation Program

British Columbia

  • Ministry of Children and Family Development - Child and Family Development Division
  • Ministry of Attorney General - Dispute Resolution Office

No evaluations have yet been conducted, however, the Dispute Resolution Office has made it a priority to develop a system of evaluation.

BC Ministry of Attorney General program offering mediation for litigants in child protection cases to save time and reduce the number of cases going to contested protection hearings.

The Child Protection Mediation Program is administered by the Dispute Resolution Office (DRO) and the Ministry of Children and Family Development Child and Family Development Division (MCFD).

The CPMD is based on Section 22 of the Child, Family and Community Service Act (CFCSA) (also known as "section 22 mediation"). Section 22 reads:

If a director and any person are unable to resolve an issue relating to the child or a plan of care, the director and the person may agree to mediation or other alternative dispute resolution mechanisms as a means of resolving the issue.

Parents and the director can choose to use mediation when there is a disagreement regarding the care of a child. It can be used to resolve a number of issues, including:

  • selecting what services will be needed as part of the plan of care;
  • the length of time the child will be in the director's care;
  • the amount and form of access the parent or others have with the child;
  • the specific terms of a supervision or access order; or
  • other matters relating to the care or welfare of a child.

Mediation is an option that may be tried any time when MCFD is involved with a family under the CFCSA, even before a child is removed or after a hearing. A judge may suggest parties try mediation or any of the parties can request an adjournment to the court proceedings so mediation can occur. Section 23 of the CFCSA provides that if the proceedings are adjourned for mediation, any time limit applicable to the proceeding is suspended.

Any of the parties can ask the other parties to participate in mediation. The suggestion can come from counsel, from a child protection team worker, from the child's parents or members of the child's extended family. The child can also request the appointment of a mediator. However, all parties must agree to participate in order for the mediation to proceed. Judges considering a matter under the CFCSA may also suggest the parties try mediation. Mediators are selected from the Child Protection Mediation Roster.

Following in the footsteps of a number of other North American jurisdictions that have turned to mediation, a child protection mediation pilot project was conducted in Victoria, BC for one year (April 1, 1992 - March 31, 1993). Twenty families were referred to the pilot project. An evaluation was conducted which found the pilot project to be successful and recommended its expansion.

The Ministry of Children and Family Development Child and Family Development Division (MCFD) and the Ministry of Attorney General Dispute Resolution Office (DRO) established the Child Protection Mediation Program in October 1997.

An offshoot of the program titled Facilitated Planning Meeting was commenced as a pilot project at the Surrey courts. The Surrey pilot was completed in 2003, and facilitated planning meetings are now offered as a mediation option in most areas of the Fraser region.

One of the main purposes behind the Child Protection Mediation Program was to save time in child protection cases and reduce the number of cases that went to contested protection hearings. Mediation was seen as a tool by which to achieve more effective decisions that are responsive to the needs of children as opposed to the traditional adversarial process.

Permanent implementation

  • British Columbia Ministry of Attorney General
  • children
  • family law
  • litigants
  • mediation
1992 - 1993 Child protection mediation piloted in Victoria
October 1997 Child Protection Mediation Program established
June 2001 - August 2002 Facilitated Planning Meeting Project pilot program in Surrey
1993 BC Small Claims Court Settlement Conference (Rule 7)

British Columbia

Small Claims Court

Small Claims Court Rule of Court introducing mandatory settlement/trial conferences.

Settlement conferences are mandatory in all non-pilot project registries, for all cases except motor vehicle accident cases in which only liability for property damage is disputed (Rule 7(2))...

Typically, a settlement/trial conference is scheduled for half an hour before a judge in a conference room at the courthouse. The judge at the settlement/trial conference will not be the judge at trial, if a trial is necessary.

At the settlement/trial conference, the parties will sit at a table with a judge. The judge will say a few words and ask each party to give a brief summary of their case. The judge may then lead both the claimant and defendant into a discussion on what, if anything, the parties can agree on. If the parties agree on the final result, the judge will make the order. However, the parties may agree on some issues and leave issues in dispute to be resolved at trial. The judge will assess how much time is required for trial (Small Claims at 28-29).

  • All parties, with or without legal representation, must attend the settlement conference (r. 7(4)).
  • Each party must bring all relevant documents and reports to a settlement conference (r. 7(5)), whether the party intends to use them at trial or not.
  • The judge has wide powers to: mediate any disputed issues; decide on any issues that do not require evidence; make a payment order or other appropriate order in the terms agreed to by the parties; set a trial date, if necessary; discuss evidence requirements and trial procedures if a trial is necessary; order production of documents; dismiss a claim, counterclaim, reply, or third party notice if it is determined to be without reasonable grounds, or it discloses no triable issue, or it is frivolous or an abuse of the court's process (r. 7(14)).

The purpose of a Settlement Conference is to encourage the litigants to settle the lawsuit and avoid the time and cost of a trial.

Permanent implementation

  • British Columbia Small Claims Court
  • case conferences
  • mandatory programs
  • reform
  • rules of court
  • settlement conferences
1993 Rule 7 came into effect
1993 Tax Court Status Hearings (Rule 125)

Federal

Tax Court of Canada Rules Committee

Tax Court of Canada

The hearing is conducted to set dates for the completion of the remaining steps in the appeal and discuss any issues pertaining to the appeal.

If an appeal has not been set down for hearing or terminated within four months after the filing of the reply, the Registry send a letter to the parties requiring them to establish a schedule. Parties are expected to establish and submit this schedule within the time frame indicated in the letter. If the established schedule is acceptable to the Court, it will issue an Order confirming those dates and no status hearing will be required. If no schedule is established within the required time frame, a status hearing will be ordered.

Status hearings are conducted via telephone conference call unless directed otherwise by the Court. At the status hearing, parties must be prepared to discuss any matter pertaining to the appeal including steps remaining to be completed prior to trial.

The judge presiding over the status hearing will set dates for the completion of the remaining steps in the appeal, including the exchange of lists of documents, the completion of discoveries and undertakings, a deadline for the parties to inform the Hearings Coordinator whether the case will settle, whether case management or a pre-hearing conference is required, or if a hearing date should be set.

Parties may avoid going to a status hearing if undertakings for discovery and other appeal steps have already been taken, and they file for a hearing a date. If these steps are taken prior to the date of the status hearing, the status hearing will be cancelled.

The purpose of the status hearing is to facilitate the resolution of matters before the Tax Court to decrease the cost of litigation.

Permanent implementation

  • appeals
  • case conferences
  • pre-trial procedure
  • Tax Court of Canada
1993 Rule 125 introduced
1995, 1999, 2004, 2010 Amendments made

 

1995 Saskatchewan Queen's Bench Mandatory Mediation

Saskatchewan

Saskatchewan Ministry of Justice and Attorney General's Dispute Resolution Office

Court of Queen's Bench - Civil

An extensive study of the Mandatory Mediation Program using qualitative and quantitative measures was undertaken in 2003, Learning from Experience. The goals of the study were:

  • To evaluate how far the mediation program in the Queens' Bench meets the needs of the people of Saskatchewan (focusing on discussions with client users);
  • To assess the impact of the mandatory mediation program on civil litigation practice in Saskatchewan (focusing on discussions with members of the Bar);
  • To determine the efficiency of the Queen's Bench program (from available program statistics).

 

Mandatory mediation in non-family civil actions which takes place after the filing of pleadings and prior to any other steps in the litigation.

Section 54.2 relates to civil mediation. After the close of pleadings in a contested action or matter that is not a family law proceeding, the local Registrar arranges for a mediation session, and the parties attend the mediation session before taking any further step in the action or matter. These sessions must occur after the close of pleadings and before any other step in the proceedings. Experienced mediators are utilized. Since the initiation of the program, there has been a gradual increase over the years in the per cent cases resolved through civil mediation. In 2007-2008, 53% of civil cases were resolved following mandatory civil mediation (Annual Report at 26).

A 1994 amendment to Saskatchewan's The Queen's Bench Act introduced an initial mediation session in two centres on a pilot basis, at the close of pleadings in every non-family, civil litigation action. The pilot moved to program status in September 1997 with expansion to the one of busiest judicial centres in the province. The program continues to expand and currently captures approximately 80% of all non-family civil litigation actions commenced in the province.

Recommendation 1 of the CBA Systems of Civil Justice Task Force was that every jurisdiction "make available as part of the civil justice system, opportunities for litigants to use non-binding dispute resolution processes as early as possible in the litigation process and, at a minimum, at or shortly after the close of pleadings, and again following completion of examinations for discovery."

The evaluation data, both qualitative and quantitative, which has been collected and analyzed for this study illuminates the operation of the Saskatchewan Queen's Bench mediation program and gives voice to the experiences of program users. It provides a detailed picture of the relationship between lawyers, their clients, the mediators and the structure and design of the present program.

The Saskatchewan Queen's Bench mediation program is perceived by almost all the individuals we consulted as appropriate, and its objectives - the faster and more satisfactory reaching of settlement in some civil matters - fully achievable. It became rapidly apparent that the question that respondents were most interested in discussing with us was not whether the program should be maintained, but how it might be improved in order to better achieve those objectives.

The consensus that emerges is that the program is reaching its goals in many individual cases, but not in others. While there is widespread support for both its universal nature and the present timing of mediation, many respondents called for greater flexibility in relation to both aspects of program design. In addition, there is an interest in rethinking the role of the mediator to clarify and perhaps sharpen this point of intervention with greater proactivity, and perhaps some type of enlarged role before and after mediation in certain cases.

There are also a few clear problems with the design of the present program. One is that some cases proceed to mediation with insufficient preparation, perhaps with little or no exchange of materials in advance of mediation, and just occasionally, an absence of "good faith" to negotiate. Another issue (perhaps related to this) is the somewhat uninformed approach of a small number of members of the Bar in regard to the role they might most effectively adopt in the mediation process. Each of these problems is resulting in some disappointment among clients, and some frustration among some members of the Bar (Learning from Experience at 6).

 
Following the evaluation in 2003 there was a further round of discussions with the legal community and legislative amendments responding to the recommendations in the report occurred in 2004. The amendments to The Queen's Bench Act provided flexibility for the Director to postpone the mediation session until after the parties have exchanged documents. This provided greater flexibility in the timing of the mediation session. In situations where documents are crucial to a party's case or a more productive mediation will occur after exchange of documents the Director may grant a postpone to allow for this exchange to occur.

Other amendments clarified the authority of the Director of the Dispute Resolution Office to grant exemptions and postponements and granted the court the ability to award costs against a party that does not comply with the mediation requirement.

Permanent implementation

  • mandatory programs
  • mediation
  • Saskatchewan Court of Queen's Bench
1995 Pilot project implemented in two centres
2003 Formal evaluation
2005 Reform instituted in major judicial centres

 

1996 Northwest Territories Case Management (Part 19)

Northwest Territories

Supreme Court of the Northwest Territories

Supreme Court of the Northwest Territories

The Court has noted areas which are in need of improvement and the Rules Committee had indicated its intention to address them commencing Fall 2007.

Rules facilitating resolution of disputes without trial if possible and, if a trial is required, simplifying issues so as to make the entire process more efficient in both time and money for the litigants.

Part 19 sets out a comprehensive scheme for pre-trial case management. There is no set procedure for case management. Instead Part 19 utilizes a flexible approach consisting of various case management tools (i.e. pre-trial conference) to be used based on the nature and needs of the case. The Court could send a case to case management or the parties may apply for it. A case management judge is then appointed. Once a judge is appointed, a variety of procedures are available:

  • Pre- trial conference: Rule 231 of the 1979 Rules of Court describes the objective of the pre-trial conference as the simplification of issues and exploration of the possibility of admission. The purpose of the pre-trial conference is not to bring about settlement, but if that is the result, then all the better.
  • Case management: In larger complex cases, a case management programme may be necessary. Settlement of the case is not the purpose of case management, but rather, it is to prepare the case for trial in the most efficient and cost effective way. Case management may involve establishing a schedule for all interlocutory pre-trial steps; limiting the time period for discovery; setting dates for the exchange of expert reports; filing a Statement of Agreed Facts. More than one case management conference may be scheduled. After each conference a judge would prepare a memorandum outlining the subject-matter of the conference and any directions made. The memorandum will provide at least an informal and basic record of steps taken at the conferences. A case management judge can be the trial judge due to the limited number of judges on the bench.
  • Settlement conference: A settlement conference is essentially a form of alternative dispute resolution designed to avoid trials. The judge's role is that of an objective mediator who keeps the discussion on track. Topic areas include: assessing success on various issues and damages that may be awarded; financial resources available to parties to meet a judgement; insurance coverage; offers and counter offers made; legal costs of litigation to date, to trial, and to possibly appeal. As a general rule, the settlement conference judge cannot be the trial judge. A settlement conference may be requested by the agreement of all the parties.
  • Mini-trial: Mini trials are in-camera hearings whereby the presiding judge gives a non binding advisory opinion on the probable outcome at trial [Rule 292]. The mini trial judge cannot be the trial judge. This procedure is best suited to cases which involve areas of legal dispute where neither credibility nor facts are significantly at issue. Although the judge's opinion would only be advisory, it normally would have a substantial enough effect on counsel to move the parties toward settlement.

Rule 288 permits sanctions against any party violating orders issued under Part 19.

The incorporation of Part 19 into the Rules of Court was essentially a formalization of dispute mechanism tools already informally used by the court. By putting the rules in writing, the Court is able to apply the procedures uniformly and with clear guidelines. Rules 281-292 (Part 19) were modelled on Saskatchewan's r. 192, Ontario's r.50, and B.C.'s r.35(5).

A second Notice to the Profession was released in December 1999 to clarify some minor problematic issues. Parties were utilizing case management to resolve issues that other Rules of Court were meant to resolve. Overall, however, it seems that case management was working well in the Northwest Territories and would be retained.

The Supreme Court of the Northwest Territories describes the purpose of Part 19 in a Notice to the Profession issued in June 1996:

The purpose of Part 19 is to provide flexibility in procedures so as to facilitate matters for trial or to effect a pre-trial settlement. It is premised on the "multi-door courthouse" approach: one way to get into system (by starting an action) but, once in the system, many options (beside a trial) to choose from. The rules can accommodate a wide variety of steps from the traditional pre-trial conference to a highly involved settlement-oriented colloquy. The objectives are nevertheless the same: the resolution of disputes without trial if possible and, if a trial is required, the simplification of issues so as to make the entire process more efficient in both time and money for the litigants (1996 Notice).

Permanent implementation

  • case conferences
  • rules of court
  • settlement conferences
  • Supreme Court of the Northwest Territories
  • case management
1996 Case management rules come into effect
December 1999 Notice to the Profession clarifying rules

 

1998 Alberta Provincial Court Civil Claims Mediation

Alberta

Alberta Justice

Provincial Court - Civil Division

Alberta regulation introducing mandatory mediation in selected Provincial Court cases to assist the parties in resolving disputes without going to trial.

  • At any time after a dispute note is filed the matter may be reviewed and chosen for mediation. Parties are sent a letter signed by a judge requiring them to attend a mediation session at a specific date and time. All parties are required to attend mediation and a corporate representative must have knowledge of the case and the authority to resolve it. Counsel and agents representing parties may attend with the party.
  • The mediation session must occur within three months after the last dispute note is filed.
  • Failure to attend mediation may result in the party who failed to attend without a reasonable excuse being ordered to pay costs of up to $50, being unable to take further proceedings in the action, or having the claim or dispute note struck out, entitling the other part to apply for a judgment without a trial.
  • A party must make an application to the Court exempting them from the requirement to mediate.
  • Co-mediation is used in this program to ensure quality of service. All mediators are volunteers and receive an honorarium of $75 per mediation session. Each session typically lasts two hours.
  • To mediate with this program, mediators must have completed at least 40 hours of basic mediation training. Candidates who meet this requirement are invited to attend a determination interview. Successful interviewees are invited back to an orientation session and must sign a Code of Ethics, Oath of Confidentiality, and agree to a criminal check. In the Code of Ethics it states that the mediator agrees they are committed to continuous learning. Alberta Justice supports on-going training for the mediators; training may include lunch hour sessions and at least one major training session per year where the mediators pay a nominal registration fee of $50.
  • The mediation coordinators provide on-going support to the mediators and parties. The coordinators address questions and concerns from all parties and the mediators and make administrative decisions including determining the suitability of cases for mediation.
  • There is no cost to the parties to attend mediation. Alberta Justice funds this program, including the majority of the training costs.

The mediation process was developed and implemented in 1997 in Alberta Regulation 271/1997 under ss. 65 and 66 of the Provincial Court Act.

The court centres which have implemented the program keep statistics on the mediation settlement rate. Statistics collected from the Calgary and Edmonton programs in 2005 indicate a mediation settlement rate of approximately 63% using interest-based mediation.

Permanent implementation in four court centres

  • litigants
  • mandatory programs
  • mediation
  • Provincial Court of Alberta
  • reform
January 1998 Implemented in Edmonton
September 1998 Implemented in Calgary
January 2006 Implemented in Lethbridge
February 2006 Implemented in Medicine Hat
November 2006 Implemented in Red Deer
2007 Implemented in Grand Prairie
1998 BC Small Claims Court Mediation Program (Rule 7.2)

British Columbia

BC Dispute Resolution Practicum Society

Small Claims Court

Small Claims Court rule of court establishing a mediation program.

CMP operates in five Small Claims registries: Nanaimo, Surrey, North Vancouver, Victoria and Robson Square, Vancouver (but only in respect of a disputed claim for which the notice of claim that started the proceeding was filed at Robson Square before November 26, 2007).
 

Referrals

Under the Practice Direction that preceded the Rule, referrals to the CMP came from four sources:

  • voluntary election by the parties;
  • referral by a judge at a settlement conference;
  • mandatory referral of all construction cases; and
  • mandatory referral by date of reply.

Referrals to mediation differ by each registry but there is an overall referral rate of 25% of the total caseload from the CMP registries.
 

Outcomes

Preliminary numbers from a UBC study show that settlement rates for the four registries for mandatory mediations are 56%. For voluntary mediations settlement rates are 67%. Average satisfaction with the conduct of the mediation is 4.32 on a 5 point scale; 91% of participants indicate that they would use mediation again.
 

Small Claims Rule 7.2

On April 28, 2003, a new Small Claims Rule replaced the practice direction, bringing greater clarity to the mediation process. It will also help integrate mediation with the work of the Court and the Registry.

The new rule reflects many aspects of the practice direction which has been in place since the inception of the Program. However, there are some significant additions to the rule. These include provisions setting out the consequences of not attending a mediation, as well as enforcement and confidentiality provisions...

[T]he mediation rule applies to the following disputed claims:

  • Claims that fall within a class of cases described in Schedule D - Schedule D currently includes construction cases and a specified number of cases from each registry by date of reply.
  • Claims referred to mediation from a settlement conference, with the consent of the parties.
  • Claims for which a Notice to Mediate has been filed with the registry.

Schedule E describes classes of cases to which the rule does not apply and includes claims arising from a motor vehicle accident.

When a case is referred to mediation, the mediation coordinator will send a Notice of Mediation Session to each of the parties. Parties may apply to a judge for an exemption from the requirement to attend the mediation. The consequences of not attending a mediation session are similar to those for not attending a settlement conference.

When parties reach full or partial agreement, they must file an agreement form. The agreements are drafted by the mediators and signed by the parties at the mediation. If the parties do not reach agreement on all issues, the registry sets a date for settlement conference. The Rule includes enforcement mechanisms.

Website

The Court Mediation Program (CMP) was established in 1998. The process was initially governed by a Practice Directive, which was replaced on April 28, 2003 by the new Small Claims Rule 7.2, Mediation for Claims up to $10,000. The program is funded by Ministry of Attorney General and administered by BC Dispute Resolution Practicum Society.

The objective of CMP is "to enlarge the pool of qualified mediators in B.C.; to enhance access to justice; and to relieve backlog pressure on the court. Up until now, the CMP has been operating in 3 registries, Surrey, Robson Square and Nanaimo, on the authority of practice directions issued by the Office of the Chief Judge of the Provincial Court" (Website).

Permanent Implementation

  • British Columbia Small Claims Court
  • mediation
  • rules of court
1998 CMP established
April 2003 Practice Directive replaced by Rule 7.2
1998 Court of Appeal of Québec Mediation Service Program

Quebec

Court of Appeal of Québec

Court of Appeal of Québec's voluntary mediation program.

The Program Features
The mediation service is open to all parties involved in civil, commercial or family litigation at the Appeal Court level. However, certain subject matters may not prove to be suitable (for example jurisdictional issues). Litigation in constitutional or criminal law is obviously excluded from mediation.

In all cases, both parties must sign a "Joint Request for mediation" form. This is the one and only form that has to be filled out and filed. The form is forwarded to the office of the Court as soon as possible after filing the notice of appeal. At any time before the court hearing the parties may request a mediation session. Parties not represented by counsel are also admissible to the mediation program.

It should be stressed that there are no additional costs to the parties. The Quebec Court of Appeal funds the program through its regular staff and the program operates under the general supervision of the Chief Justice.

Filing the request for mediation automatically suspends appeal proceedings. However, either party may decide to abandon the mediation program and return to the ordinary appeal procedure at any time.

A program manager receives the request and opens a file which is kept entirely separate from the Court of Appeal files. The program manager and the judge conciliator screen the request for mediation to evaluate the likelihood of settlement and the suitability of the issues for mediation. When necessary a telephone conference is held by the judge conciliator. This is to discuss the issues on appeal and the status of the negotiations in order to ensure that the parties have a real interest in a mediation. The telephone conference is also required to ensure that mediation is not being sought merely as a pretext to buy time in the ordinary court proceedings.

The parties must agree on one set of documents which together constitute the mediation file...The supporting documents are usually forwarded to the presiding judge-mediator usually one week prior to the date set for mediation. In practice, the mediation process, being very flexible, adapts to each individual situation.

The Scheduling of Mediation Sessions
A mediation session is scheduled within thirty days following reception of the request in writing. On average only one three hour session is required and it is usually held early in the appeal process. This is so the parties can avoid further major legal expenses and delays in obtaining official transcripts and preparing factums and annexes.

The Ground Rules and Procedure
At the beginning of a mediation session, the judge determines ground rules and procedure with the cooperation of the parties and their attorneys. Each mediation session is unique. The parties will structure it the way they want. It is important to stress this element because the heart of the mediation system and the probable reason for its success is it's capacity to be supple and adaptable.

The judge discusses a possible settlement jointly with the parties and their attorneys, but may meet with both parties together without their lawyers. The judge explores the possibilities, avoiding as much as possible expressing an opinion with regard to the judgement of the trial division. However, in some circumstances, the judge will feel at ease to express an opinion regarding a judgment rendered by the trial division. In those cases, the judge mediator may readily identify an oversight or weakness in the judgment. This, in an effort to further clarify the legal issues for the parties and to bring about a better understanding of what is at stake. However, as a general principle, the judge must totally abstain from giving an opinion on the validity of the judgment and leave the merits of the appeal for the Court...The judge can recommend specific solutions for settlement, but will never compel the parties to accept a settlement.

Discussions are not limited to the specific issues raised in the notice of appeal and some time is allowed for the parties to settle any related issues arising between them in other cases. Again, flexibility is encouraged and provided by conciliation and permits the parties to find a global settlement.

The Confidential Nature of Proceedings
The confidential nature of mediation proceedings is crucial to productive negotiations. As a matter of ethics, the parties voluntarily commit, on the request for conciliation form, to keep all matters strictly confidential and to refrain from disclosing the substance of all discussions. There are no transcripts or summaries of the mediation session and any notes taken by the judge mediator are eventually shredded.

The Settlement Agreement
If the parties are successful in resolving their differences through mediation, a settlement agreement is drafted by the attorneys and signed by the parties. The settlement agreement is then ratified by an independent panel of three judges of the Court of Appeal at no extra costs and without the need of a written motion. Once ratified, the judgement is as enforceable as any other judgement of the court. In a few cases where settlement is not achieved in a first session, the parties may be granted a short delay to further consider their positions and return for a follow-up session which are often successful. Even in failure, the mediation exercise will have permitted the parties to better understand the issues and this will prove to be useful in the preparation of the factums and in reducing the time of a hearing. Consequently, if the mediating session does not end up with settlement, the exercise will prove to be beneficial in providing efficient case management (CSP).

In 1998, under the auspices of the Quebec Court of Appeal, the conciliation service program was implemented as a pilot project at the appellate court. Judicial mediation was a first in Canada and is still believed to be the only program of its kind anywhere. Judicial mediation refers to the fact that the process involves the full and active participation of an Appeal Court judge at each stage of the process. The Court of Appeal adopted officially the Mediation Service Program in October 1999, keeping the parameters set in the pilot project (CSP).

Taking into account the judicial evolution in western society, many courts, including the Court of Appeal of Quebec, have decided to initiate, within the traditional system, a system of judicial mediation with a view to reinvesting in the parties themselves their power to decide their dispute. As guardians of public order and democratic values, it is fitting that the judiciary participate with the community in transforming the classical justice system so that it is more reflective of social values. In doing so, the justice system bears witness to a lessening of the distance between the judiciary and the public and to the principle that society is better served when it is better understood (Summary).

Within two years of the program's existence, "over 200 cases ha[d] been conciliated in civil, commercial and family matters and over 80% ha[d] been settled successfully, after one mediation session" (Summary).

Permanent Implementation

  • Court of Appeal of Québec
  • mediation
1998 Program implemented as a pilot project at the Court of Appeal
October 1999 Program made permanent

 

1998 Federal Court Rules - Case Management and Dispute Resolution Services (Part 9)

Federal

Federal Court of Canada Rules Committee

All Federal courts

Mandatory case management system in the Federal Court that employs three case management tools: status reviews, specially managed proceedings, and dispute resolution.

New Rules

Under the Federal Court Rules, all cases before the Court are subject to case management. The Federal case management system employs three case management tools: status reviews, specially managed proceedings, and dispute resolution.

Status reviews are hearings convened by the Court when parties fail to reach specific steps within certain time limits [r. 380-382]. The Court automatically fixes a date for a status review if pleadings are not closed within 180 days of the issuance of the statement of claim, or where no requisition for a pre-trial conference has been filed within 360 days. For appeals, it is 180 days from the issuance of the notice of application or appeal. A status review may be ordered by a case management judge at any time [r. 380(3)]. At a status review, an appellant or applicant may be required to:

  • To show cause why the proceeding should not be dismissed for delay and dismiss for delay if the Court is not satisfied.
  • To show cause why default judgement should not be entered and enter a default judgement if the Court is not satisfied.
  • If the Court is satisfied that the proceeding should continue, it can order it to continue as a specially managed proceeding.

Specially managed proceedings [r. 383-385] are cases taken out of the usual Court flow and proceed according to directions given by the case management judge. The case management judge may:

  • give any directions that are necessary for the just, most expeditious and least expensive determination of the proceedings on its merits;
  • fix the period for completion of subsequent steps in the proceedings notwithstanding any period provided for in the Rules;
  • fix and conduct any dispute resolution or pre-trial conferences that he or she considers necessary; or subject to subsection 50(1) hear and determine all motions arising prior to the assignment of a hearing date;
  • or may order that a status review be held in accordance with Rule 382.

Dispute resolution rules are also incorporated into the Rules [r. 386-391]. A judge may order a dispute resolution conference with respect to any issue in the proceeding. The conference has a 30 day limit and is conducted by a case management judge or prothonotary. These conferences can be mediations, an early neutral evaluation or a mini trial [r. 387]. Where a settlement of all or part of the proceedings is reached at a dispute resolution conference, it must be recorded in writing, signed and filed within 10 days of the settlement being reached [r. 389]. If a resolution is not obtained or only partially obtained, the case goes to Court. A case management judge who conducts the dispute resolution conference cannot preside at the hearing unless all parties consent [r. 391].
 

2007 Amendment

The amendment was put in place:

(1) To align the status review and case management rules with the current practice of the Federal Court of Appeal and the Federal Court in order to enhance the efficiency of the courts.

(2) To amend the rules to allow one or more prothonotaries to be appointed as case management judge.

(3) To amend the rules to allow the Court to order at any time that a case proceed as a specially managed proceeding.

(4) To make an amendment stating that the case management judge or prothonotary referred to in paragraph 383(c) can rule on any matter raised before the specially managed proceeding is assigned, unless the Court directs otherwise, and to allow the judge or prothonotary to order a status review at any time.

2007 Gazette

In 1993, the Federal Court Rules Committee commenced a review of the Federal Court Rules. The purpose of this review was to bring the Rules in line with provincial rules, and make them accessible and easier to understand. The Committee hosted many consultations with various stakeholders. In January 1998, the new Rules were approved by the Rules Committee and subsequently by the Governor in Council on February 5, 1998. The new rules came into force on April 25, 1998.

Part 9 was reviewed and a proposal for amendments was published on November 18, 2006 in the Canada Gazette. Most of the amendments were minor, more in the nature of clarification or reinstatement of pre-1998 Rules that were omitted in the 1998 Rules, or past practices that were not properly reflected in the 1998 Rules.

The amendments to the Federal Courts Rulesconcerning Case Management/Status Review based on the 2006 proposal were registered on September 27, 2007 and came into force on that date.

These rules are designed to grant the Court a more active role in supervising proceedings and encouraging resolutions. By allowing the Court to manage cases, the pace of litigation is no longer controlled exclusively by the parties, and as a result cases can be resolved in an efficient manner.

Permanent implementation

  • case planning
  • court-annexed alternative dispute resolution
  • Federal Court of Canada
  • mandatory programs
1993 Federal Rules Committee commenced review
January 1998 New rules approved by Rules Committee
February 1998 Governor in Council approved new Rules
April 1998 New Rules came into force
November 2006 Proposed Amendments to Status Review published
September 2007 Amended Rules came into force
1999 Newfoundland and Labrador Mediation Pilot Project in Small Claims Court

Newfoundland and Labrador

Small Claims Court

Pilot project incorporating interest-based mediation into the small claims process and using articling students as mediators.

In 1999 the Small Claims Rules Committee decided to use third-year law students who were completing their articling as the mediators in the proposed mediation process. This obviated the need for any financing for the project as the mediation could be done on a volunteer basis; and as the law clerks were all members of the Law Society, there was already a regulatory body in place to maintain professional standards. At the time it was hoped that the law students would welcome a chance to be directly involved in the litigation process and that obtaining volunteers would not be a problem. This hope has come to fruition and the number of volunteers has, on some occasions, outstripped the number of cases to mediate. To date all of the law clerks in the bar admission course from 1999 to 2007 have participated in the process and all of them have reported they found the experience to be very useful.

We continued with the project this year [2008] despite a shortage of judicial resources which arose as a result of retirements and illness. We had a well attended organizational meeting with the law students in August and started to assign the mediation sessions in September. Not all of the 2008 class have had a chance to mediate as of the writing of this article but all of those who have completed a session reported that they enjoyed the experience and several have asked that they be given another mediation opportunity. The students since 1999 have been exposed to more ADR courses in law school and successive classes have grown much more comfortable in the role since the inception of the program. The settlement rate remains very high and it has been a great benefit to the many unrepresented litigants appearing in small claims court.

2008 Annual Report at 35

Results of the Mediation Process

On the litigation itself the success rate in terms of settling cases via mediation has not been high but it has been significant. On average, over the years, mediators have settled between 30 and 40 percent of the cases. Despite this, however, the majority of litigants have been positive about the process-finding that even if a full settlement of their case was not achieved, at least some of the issues were resolved and they were more prepared for trial. We had initially referred all cases to the medication process. Experience over the past six years has shown us that some cases are not amenable to mediation and will not settle. This has proved to be the case in motor vehicle accident cases. Generally speaking, before starting the court process these cases have already been through a form of mediation in that insurance adjusters have negotiated with the parties and further mediation or discussion between them at court is pointless. Most vehicle accident cases involve a determination of fault and turn on the findings of fact and parties are interested in having a trial and a determination being made by a Judge. As a result, the Small Claims Rules Committee has decided that this year, motor vehicle accident cases will no longer be mediated and instead will proceed directly to trial. All the remainder of the cases will still go through the mediation process.

2007 Annual Report at 34
 
 
 

In May of 1999 a "pilot" project was started in the Small Claims Court to incorporate interest-based mediation into the small claims process...Prior to introducing mediation the procedure was to hold a settlement conference pursuant to Section 10 of the Small Claims Act S.N.L. 1990. The settlement conference was chaired by the Judge and was essentially a first appearance to ensure that the parties were ready for trial. At the settlement conference, the Judge would explore the possibility of settlement with the litigants or make other orders such as default judgments in the event of a non-appearance but there was little opportunity for mediation.

2008 Annual Report at 35)
 
 

"The hope was that by using mediation fewer cases would go to trial and issues could be resolved at the settlement conference stage" (2008 Annual Report at 35).

The student experience compliments the bar admission course and it continues to be a very positive process for litigants, the Court, and the Bar. Interestingly our program has had an international effect. A delegation of judges from Eastern Europe was at the Court for a visit in the fall of 2007. They were extremely interested in our mediation program and we have since heard that they hoped to design a similar program to ours in their home courts utilizing their student Judges.

2008 Annual Report at 35

Ongoing pilot

  • law schools
  • mediation
  • Newfoundland and Labrador Small Claims Court
  • pilot projects
May 1999 Mediation plot project initiated
2007 Motor vehicle accident cases are no longer mediated
1999 Ontario Mandatory Mediation Program (Rules 24.1 and 75.1)

Ontario

Civil Rules Committee

Superior Court of Justice (Toronto, Ottawa and Windsor)

Continuation of the Program past July 4, 2001 "was to be in large part dependent on the results of a thorough and independent 23-month evaluation".
 

[T]he focus of the evaluation was on the four major objectives of mandatory mediation under Rule 24.1, namely:

  • Does Rule 24.1 improve the pace of litigation?
  • Does Rule 24.1 reduce the costs to the participants in the litigation process?
  • Does Rule 24.1 improve the quality of disposition outcomes? and
  • Does Rule 24.1 improve the operation of the mediation and litigation process?
    Executive Summary at 1

Program designed to help parties involved in civil litigation and estates matters attempt to settle their cases prior to trial.

Many parties negotiate during the course of litigation. Over 90 percent of all lawsuits settle before getting to the trial stage. Under the Ontario Mandatory Mediation Program, cases are referred to a mediation session early in the litigation process to give parties an opportunity to discuss the issues in dispute. With the assistance of a trained mediator, the parties explore settlement options and may be able to avoid the pretrial and trial process.

Under Rule 24.1, civil actions that are subject to case management are referred to mandatory mediation. Case management is a system in which the court supervises cases and imposes strict timelines on their movement through the pretrial and trial process. Certain civil actions, such as family law cases, are excluded from mandatory mediation. Under Rule 75.1, contested estates, trusts and substitute decisions matters are referred to mandatory mediation.

General Information

Rule 24.1

  • Civil, case-managed actions (except family cases) that are defended are referred to mediation. Cases may be exempted only if the parties obtain a court order.
  • The mediation is conducted by a private-sector mediator. Parties may agree to select a mediator from the Program's roster of mediators or one who is not on the roster. This decision must be made within 30 days after the first defence is filed.
  • If the parties cannot agree on a mediator, one will be appointed for them by the Local Mediation Coordinator, who is responsible for administering the Program.
  • The mediation must take place within 90 days after the first defence is filed, unless the court orders otherwise. However, parties in a standard track action may agree to postpone the mediation for an additional 60 days by filing a consent with the Local Mediation Coordinator.
  • At least 7 days before the mediation, parties must provide the mediator and the other parties to the lawsuit with a Statement of Issues, which identifies the issues in dispute and the parties' positions and interests. The pleadings and any documents of central importance to the case must be included.
    General Information

Effective January 1, 2010, as part of the extensive changes to the Rules of Civil Procedure, Rule 24.1 will be "expanded to include all cases commenced in Ottawa, Toronto or Essex and is no longer limited to case managed or simplified procedure cases. Now mediation is to take place within 120 days after the first defence has been filed (rather than 90 days as under the previous regime) and mediation may be postponed to a later date if the parties consent to the date in writing and the consent is filed with the mediation coordinator". (Amendmentsat 3)
 

Rule 75.1

  • Proceedings relating to estates, trusts and substitute decisions are referred to mediation, unless there is a court order exempting them.
  • Within 30 days after the last day for serving a notice of appearance, applicants are required to bring a motion for directions relating to the conduct of the mediation.
  • At the motion for directions, the court may direct such matters as: the issues to be mediated, who has carriage of the mediation, the timeframe for conducting the mediation, which parties are designated to attend the mediation, how the designated parties are to be notified of the mediation, and how the cost of the mediation is to be shared among the parties.
  • Following the motion for directions, parties are required to select a mediator within 30 days of the court order giving directions.
  • The mediation is conducted by a private-sector mediator. Parties may agree to select a mediator from the Program's roster of mediators or one who is not on the roster. The party with carriage of the mediation is required to give the selected mediator a copy of the order giving directions.
  • If the parties fail to select a mediator within 30 days, the party with carriage of the mediation must immediately file with the Local Mediation Coordinator a request to assign a mediator.
  • The mediator, whether assigned or selected, is required to immediately fix a date for the mediation and, at least 20 days before that date, serve on every designated party a notice of the place, date and time of the mediation.
  • At least 7 days before the mediation, designated parties must provide the mediator and the other designated parties with a Statement of Issues.
    General Information

The Ontario Mandatory Mediation Program was started on January 4, 1999 in Toronto and Ottawa as a pilot project until July 4, 2001. Based on an evaluation of the Program, it was permanently implemented following the release of the evaluation report on March 12, 2001. The Program was implemented in Windsor on December 31, 2002. Effective January 1, 2010, as part of the extensive changes to theRules of Civil Procedure, Rule 24.1 will be expanded to include all cases commenced in Ottawa, Toronto or Essex.

The Program is designed to help parties involved in civil litigation and estates matters attempt to settle their cases before they get to trial, thereby saving both time and money.

Evaluation of the Ontario Mandatory Mediation Program

On March 12, 2001, an Evaluation of the Ontario Mandatory Mediation Program was submitted to the Civil Rules Committee. The report highlighted the following overall key findings and recommendations:
 

In light of its demonstrated positive impact on the pace, costs and outcomes of litigation, Rule 24.1 must be generally regarded as a successful addition to the case management and dispute resolution mechanisms available through the Ontario Superior Court of Justice in both Toronto and Ottawa. More specifically, the evaluation provides strong evidence that:

  • Mandatory mediation under the Rule has resulted in significant reductions in the time taken to dispose of cases.
  • Mandatory mediation has resulted in decreased costs to the litigants.
  • Mandatory mediation has resulted in a high proportion of cases (roughly 40% overall) being completely settled earlier in the litigation process - with other benefits being noted in many of the other cases that do not completely settle.
  • In general, litigants and lawyers have expressed considerable satisfaction with the mediation process under Rule 24.1.
  • Although there were at times variations from one type of case to another, these positive findings applied generally to all case types - and to cases in both Ottawa and Toronto.

The evaluation has also identified a limited number of specific areas in which improvements to the Rule would enhance the operation of the mediation program.

In light of these findings, it is recommended that:

  • R 1. The Rule be extended for the current types of cases covered beyond July 4, 2001.
  • R 2. The Rule be amended, or other procedural changes be made in line with the findings in this report, as part of a process of continuous improvement of Rule 24.1.
  • R 3. The Rule be extended to other civil cases in Toronto and across the province as part of the expansion of case management.
    Executive Summary at 2

Proposed Changes to Rule 24.1

On October 1, 2008, the Civil Rules Committee issued a request for consultation on a proposed new case management Rule 77, which "carries with it certain consequential amendments to the rule respecting mandatory mediation (Rule 24.1)".
 

The new Rule also allows for different levels of case management for different cases. The mandatory mediation rule is to be altered to make it a separately operating rule such that mandatory mediation can be required in cases without also requiring those cases to be subject to case management and vice versa. There is also more flexibility as to the timeframe within which mandatory mediation must occur under the amended Rule.

Consultation Paper at 1

Permanent Implementation

  • mandatory programs
  • mediation
  • Ontario Superior Court of Justice
January 1999 Program initiated in Toronto and Ottawa
March 2001 Report of the Evaluation Committee released
December 2002 Program initiated in Windsor
January 2010 Rule 24.1 expanded to include all cases commenced in Ottawa, Toronto and Essex
2001 Alberta Intake and Caseflow Management

Alberta

Alberta Justice

Provincial Court

Alberta Justice project providing caseflow management to self-represented litigants dealing with matters related to parenting, contact and guardianship disputes in Provincial Court.

The project helps litigants deal with matters related to parenting, and contact and guardianship disputes but does not include disputes related to child support.

Litigants without legal representation meet with an intake counsellor to assess their case. Then they attend a caseflow conference with a coordinator and the other party. The intake counsellor and coordinator explore options with the litigants, facilitate resolutions and make referrals where required. Litigants are also given information on mediation and judicial dispute resolution in an effort to resolve the matter outside of court. The conferences are an attempt to gain consensus on as many issues as possible, and sometimes agreements are struck by the parties at this stage. If the parties resolve their matter, the coordinators can then prepare consent des

k orders for a judge to sign without a trial date. The coordinators have clerk of the court designations, so parties do not have to go to the Law Courts building to file their applications.
 

If the matter proceeds to court, the caseflow coordinator or family court workers will ensure that the parties are ready and that they understand the court procedures. The family court workers also help prepare court applications and attend court and judicial dispute resolution hearings with the parties. This will save time for the court and the parties by reducing the number of unnecessary adjournments.

Just-in.

The program began with a pilot project in Edmonton with the enactment of the Intake and Caseflow Management Rules (Alta. Reg. 163/2001). This was replaced in 2005 with the Intake and Caseflow Management Regulation (Alta. Reg. 150/2005). The program was expanded to Calgary based on its success in Edmonton. (Family Justice Newsletter)

In the past, unrepresented applicants often faced challenges when bringing applications for custody, access or private guardianship in provincial court.

Being unfamiliar with court procedures or not properly prepared for the proceedings often resulted in unnecessary delays and extra appearances for the applicants and the other parties involved.

The new Intake and Caseflow Management Pilot Project will save court time and improve access to justice by providing new and enhanced services for unrepresented litigants in Edmonton Provincial Family Court.

Just-in.
 

Implemented in Edmonton and Calgary

  • Alberta Justice
  • assessment
  • case planning
  • courthouse resources
  • family law
  • Provincial Court of Alberta
  • self-represented litigants
2001 Pilot Project launched in Edmonton
2005 Permanent implementation
2006 Expanded to Calgary
2001 BC Facilitated Planning Meetings Program (FPMP)

British Columbia

  • Ministry of Children and Family Development - Child and Family Development Division
  • Ministry of Attorney - General Dispute Resolution Office

The final evaluation report of the Surrey Court Project's Facilitated Planning Meeting was released on November 2003. "The methodologies for [the] report consisted of analysis of a range of quantitative data extracted from the FPMP database, and a comparison between FPMP cases and a baseline set of protection cases from the same offices, in terms of the time for cases to reach various milestones and a final disposition" (Report at v).

Mediated meetings between parents and social workers to resolve issues in child custody cases in a collaborative manner.

The basic steps of the Facilitated Planning Meeting process are:

  • Step 1: Invitation/referral. Parents are invited to participate in the project
  • Step 2: Setting up an orientation session for parents
  • Step 3: Orientation session for parents and a separate meeting with the social worker
  • Step 4: Information exchange prior to the Planning Meeting
  • Step 5: The Planning Meeting
  • Step 6: Where all or some issues are agreed to, formalizing the agreement.
    Backgrounder

Step 1: Referral Process

A referral to the project may be made by a social worker on one of the participating teams, the FPMP Court Work Supervisor, a parent, the lawyer of a parent, MCFD Director's Council, or a Judge. The aim of FPMP is to make such referrals as early in the court process as possible.

Report at 3

Steps 2 & 3: Orientation Session

Orientation sessions are held between the mediator and social worker (including the court work supervisor) on the one hand, and parents on the other. Depending on the relationship between the parents, their sessions may be held together or separately. Sessions with other parties are possible as well. Legal counsel may attend these meetings.

The purpose is to prepare parties for the planning meeting by discussing logistics and clarifying parties interests, issues and concerns. Information relevant to the safety of the child(ren) is also exchanged. An Agreement to Participate in the planning meeting may be signed at this stage.

Orientation sessions and planning meetings (as discussed in the next section) are scheduled by the FPMP Administrative Coordinator.

Report at 3

Steps 5 & 6: Planning Meeting

The planning meeting is a mediated session which includes one mediator, the immediate parties (e.g. parents and social worker), and the Court Work Supervisor, and can include parents' counsel, counsel for the child(ren), Director's counsel, and other relevant parties. The original expectation was that the meeting would take about 2 hours, and that in some cases a second meeting may be necessary.

When all or some issues are agreed to, a written agreement is created and signed. In some cases this agreement becomes the basis of a consent order. If no issues are resolved, the mediator confirms that the matter will proceed to a hearing.

This meeting is also scheduled by the Administrative Coordinator.

Report at 4

Comparison with Section 22 Mediations under the CFCSA

Section 22 of the CFCSA allows child protection disputes to be referred to mediation for resolution. A Child Protection Mediation Program was established in 1997. The main differences between the FPMP process and other Section 22 mediations are:

  • The role of the Administrative Coordinator is unique to FPMP and provides critical, time-consuming scheduling services to mediators. In Section 22 mediations, mediators are responsible for scheduling all mediation services. (See note concerning the impact of the reduction of this role in Section 2.4.1.) (Note: the Administrative Coordinator position was full-time throughout the life of the demonstration project, and was essential to the timely completion of cases. It also allowed mediators and the Court Work Supervisor time to prepare for the meeting. The Court Work Supervisor reports that the reduction of this position to half time in April 2003 has seriously impacted her preparation time.)
  • The role of the Court Work Supervisor is essential to the FPMP, but is not a feature of Section 22 mediations. This role is described in Section 6.3. The Court Work Supervisor is an experienced social worker whose position is dedicated solely to the FPMP process. She participates in both the orientation meetings with the social worker and in the planning meetings, acts as a mentor or "process interpreter" to the social worker, and is knowledgeable about and has authority to approve services.
  • Section 22 mediations are strictly voluntary. While participation in FPMP is also voluntary, the Court Work Supervisor systematically reviews all eligible cases for referral.
  • Orientation sessions are optional in Section 22 mediation, but are an essential component in FPMP cases.
  • Section 22 mediations can occur at any time when MCFD is involved with a family under the CFCSA, even before a child is removed or after a hearing. The original conception of FPMP cases was that they would normally begin shortly after the court process has been initiated. However, a significant percentage of cases were referred to the project at more advanced stages in the court process.
  • Section 22 mediations can occur anywhere in the province, while the FPMP is restricted to the South Fraser Region offices identified in Section 2.1.2

While these differences are true in general terms, in the Section 22 mediations discussed in Appendix 2 of this report, the mediations were conducted by the same players and in the same manner as FPMP cases.

Report at 4
 

Facilitated Planning Meetings were introduced in 2001 as part of the the Surrey Court Project pilot program, which was continued as a permanent program with Facilitated Planning Meetings now available in some areas of the province. 
 

The Surrey Court Project was an initiative of theChild, Family and Community Service Act (CFCSA) Caseflow Study Committee. The committee was established at the recommendation of the Ombudsman, Dulcie Macallum. In her 1998 report "Getting There: Response to the Recommendations of the Gove Inquiry into Child Protection," the Ombudsman recommended that the Ministry of Attorney General and the Ministry of Children and Family Development strike a committee to explore the reasons for delays in court decisions regarding children and youth.

Backgrounder
 

The prime objective of the Facilitated Planning Meeting is to make effective decisions for children as soon as possible. It provides an opportunity, early in the court process, for parents and social workers to meet and, with the help of an independent mediator, resolve as many issues as possible in a collaborative manner. The social worker is accompanied by a Court Work Supervisor who has the authority to agree to a service plan and approve allocation of resources.

Backgrounder
 

The final evaluation report contained the following conclusions:
 

Data and feedback gathered for this report indicates that the FPMP has been a highly successful demonstration project. It is now an ongoing project within the Fraser South Region of MCFD and has expanded to the Simon Fraser Region. It is being actively considered in other areas of the province as a way of expediting child protection cases, reducing court, MCFD and Legal Aid costs, and contributing to more satisfying outcomes for parents, children and social workers.

The primary conclusions that can be drawn at this point are as follows:

  • The planning meeting process achieves a very high resolution rate, whether considered by overall case (83% fully resolved) or by issues involved (92% resolved). These high rates not only held up throughout the study period but actually improved. Considering the stakes involved and the highly charged nature of these cases, this is a highly significant achievement.
  • Although mediation to achieve consent on a continuing care order was not an original objective in the demonstration project, preliminary evidence concerning post-demonstration period cases clearly points to the effectiveness of mediation of CCOs. These showed similarly high resolution rates to non-CCO cases.
  • When provided with a dedicated administrative assistant to schedule orientation meetings and planning meetings the FPMP process is extremely efficient both in involving a large number of parties (average 5.4) and in expediting cases (69% of cases completed in less than 40 days from referral).
  • Whereas all the baseline cases (47/47) went to a protection hearing, only 14% (5/37) of FPMP cases did so. Instead, in the vast majority of cases where agreements were reached in a planning meeting, the social worker needed only to appear in court for a few minutes on the originally scheduled date, in order to confirm the agreement. This outcome clearly represents a savings in court and social worker time in FPMP cases.
  • Preliminary data suggests that FPMP cases take longer than comparable court cases to reach the presentation hearing and commencement of protection hearing stages; this is simply because FPMP cases involve orientation and planning meetings whereas court cases do not. However, over the longer term (i.e. to a temporary order and, especially, to final disposition) it appears that the FPMP process contributes to an overall reduction in case duration. It will be necessary to await completion of all FPMP cases before the extent and significance of the time reduction can be determined. The main reason for this time efficiency is the FPMP's ability to resolve most matters up to the temporary order stage in the same meeting. This ability in turn springs from the fact that the planning meeting is not just another "milestone event" to be managed, as court appearances often tend to be. Rather they are mechanisms whereby all relevant issues and parties are addressed in a comprehensive and non-confrontational manner.
  • Satisfaction of all major participants in the planning meetings - parents, social workers, lawyers - was very high in interviews conducted in the first half of the demonstration project. Given continued high resolution rates, it is likely that this level of satisfaction has been sustained.
  • Although this study did not involve a cost analysis, data collected by MCFD and reported in Appendix 1 suggests that this process results in costs savings to MCFD. The fact that trial dates are vacated when cases are mediated also suggests that there can be significant savings to both the Court and Legal Aid systems.
    Report at 34

Permanent implementation

  • children
  • family law
  • litigants
  • mediation
2001 Pilot project initiated in Surrey
2002 Project continued past expiration of the pilot period
2003 Evaluation of the pilot project released
2001 Family Mediation Services Program (Nunavut Pathfinder Project - Inuusirmut Aqqusiuqtiit)

Nunavut

Nunavut Department of Justice

Nunavut Department of Justice project providing mediation services to allow families to resolve conflict and move on peacefully as a family unit.

This program is offered to parents who are separating who may or may not be in conflict or who just want to make a verbal or written agreement. It gives parents a chance to sit down and talk about their issues so they can effectively build skills and understand each other's situation better. This program allows couples to hear each other's concerns with out interruptions. Mediation also allows people to see the strength of the other person, and that they love their children equally. In addition, mediation allows parties to build a better relationship and this makes it easer for them to deal with each other. This program tries to teach parents that when they separated they did not stop being parents and they need to continue sharing their responsibilities for their child equally.

2007 Annual Report at 19

General counselling training was provided to the Cape Dorset and Iqaluit counsellors in March 2006, following which the counselling services offered were expanded to include other issues affecting families such as drug and alcohol abuse, domestic violence and suicide.

A full-time person in the Iqaluit office supervises the community counsellors and provides counselling and mediation services to the residents of Iqaluit. She also provides telephone service to people in remote communities. In December 2006, the Parenting After Separation Program was added. 

Services provided by the Senior Family Support Counselor at the Iqaluit office include:

  • Information sessions for new clients, including how mediation works
  • Providing contact information for lawyers working in Legal Aid
  • Referring clients to professional counselors at Social Services and Inuit Organizations
  • Provide family law information to clients
  • Modified mediations where the Family mediator does separate mediation when needed due to anger, fear, or location issues. This is to promote the safety and equal participation of the separate parties involved
  • Telephone mediations when parties live in different communities
    2007 Annual Report at 21

Case Files at the Iqaluit Office

  • Thirty new files opened between April 1, 2007and Feb 18, 2008.
  • Telephone mediation: 2 files mediated.
  • Separate mediation: 5 files mediated.
  • In same room mediation: 8 files mediated.
  • Referral out to other organizations: 8 files.
  • Client in for information on mediation or other: 15 people.

Many of the clients have stated that the mediation process is better for their situations because it allows them to come to a mutual decision on their children's futures. Many have mentioned that they are happy to have the parenting plans and schedules. They feel that they now have a better understanding of when the children will be with each parent and they have made this decision on their own. Most clients feel comfortable that they can always go back to mediation if the need should arise and that the mediation process has given them confidence in their decisions. The majority of clients say the mediation process has given them a better understanding of each other and helped them to gain better communication skills.

2007 Annual Report at 21
 
The Nunavut Court of Justice had reached a stage in its development where mediation and the incorporation of traditional Inuit justice processes were of interest both in terms of appropriate case management and dealing with the parties more effectively. It was time to examine whether a program that emphasizes cross-cultural values between southern style mediation and Inuit problem-solving practices could be implemented in Nunavut.

Annual Report at 14

In 2001, the Nunavut Department of Justice, with Federal funding, began to study the implementation of a pilot program, Inuusirmut Aqqusiuqtiit, to provide family mediation services in two communities as a pilot project. The vision was that Inuusirmut Aqqusiuqtiit would provide support that allows families to resolve conflict and move on peacefully as a family unit. Two Inuusirmut Aqqusiuqtiit were to be based at each of the centres.

In 2002, the communities of Cape Dorset and Kugluktuk were chosen for the implementation of this pilot project. The pilot program in Kugluktuk was closed in July 2005.
 

In April of 2006, the IA Mediation Program was moved to the Community Justice Program from Court Services. This move was performed so that the program would gain greater recognition for increased funding from the Government of Nunavut. We hired another family program coordinator with the hope that this person could find more funding for the Cape Dorset office, but we were not successful in finding more funding. The Cape Dorset office closed on March 31st 2007.

2007 Annual Report at 21
 
While recent non-adversarial innovations in the Nunavut Justice system have often focused on criminal law, few initiatives have focused on civil or family matters. Backlogs and concerns about a lack of access to family law services have been growing since Nunavut was established on April 1, 1999. The adversarial process of solving any disputes is culturally foreign to Inuit, and it has been found not to be particularly successful.

Business Plan at 5-30
We hope that the pilot projects that will start in some of our communities will be successful in assisting people to resolve their difficulties outside the normal Court system. In Nunavut, it is important not only to provide access to justice, but also to provide access to problem solving resources outside of the formal court system.

2001 Annual Report at 3

Ongoing pilot

  • family law
  • mediation
  • Nunavut Department of Justice
2001 Study into pilot project begins
2002 Pilot commenced in Cape Dorset and Kugluktuk
July 2005 Kugluktuk pilot closed
April 2006 Program moved to the Community Justice Program from Court Services
March 2007 Cape Dorset office closed
January 2008 New mediators hired in Rankin Inlet, Cape Dorset and Cambridge Bay
2003 Newfoundland and Labrador Court Ordered Mediation (Rule 37A)

Newfoundland and Labrador

Supreme Court Trial Division Rule's Committee

Supreme Court of Newfoundland and Labrador (Trial Division)

Newfoundland and Labrador Supreme Court allowing court-ordered mandatory mediation in civil (non-family) cases.

Rule 37A envisions the mediation process as one "of discussion between parties...under the direction of neutral third party...to assist them in reaching a mutually acceptable resolution" (r. 37A.01(b)). 

Although the Rule contemplates "interest-based" mediation, the "procedure and methodology to be followed...may vary according to the particular style and approach of the mediator" (r. 37A.05(7)).

The Court, on the application of a party or on its own motion at any time following the filing of a defence, may order the parties to participate in mediation (r. 37A.03(1)). 

Unless otherwise ordered, the mediation must commence within 24 days of the date of such order, it should last no longer than four hours in total and the costs thereof are born equally by the parties (r. 37A.03(3)). All further proceedings are stayed until the mediator's report is filed (r. 37A.03(6)).

Once the mediation has been scheduled, the parties are required to provide the mediator and each other party with a brief statement of factual and legal issues in dispute, a summary of that party's interests and copies of all documents considered of central importance in the proceeding at least seven days before the session (r. 37A.05(2)). The mediator is required to file a mediation report within 10 days after the mediation is concluded indicating whether agreement has been reached (r. 37A.07(1)).

If an agreement has been reached at the mediation, the parties have to file a Memorandum of Settlement pursuant to r. 39.06. Otherwise, the case proceeds in the normal course
 

Concerns raised regarding Rule 37A

  • Rule 37A.03(c) contemplates that the costs of mediation are to be borne equally by the parties. This is troublesome because many litigates, in particular personal injury plaintiffs, may not have the financial resources to contribute to the costs of mediation.
  • Although the rule contemplates the establishment of the list of mediators, the rule does not set out the eligibility criteria for the persons to be placed on the list.
    CBA News at 11
  • Rule 37A.03(5) and .05(5) both contemplate additional parties attending the mediation, and in .05(5), specifically insurers. A concern has been raised that this may give such parties the opportunity to frustrate the process for their own needs. (CBA News at 11).

Rule 37A, governing Court Ordered Mediation, came into force on April 1, 2003. It applies to all non-family law civil cases.

"The purpose of this rule is to establish a mechanism to provide mandatory mediation pursuant to court order in individual cases so as to reduce cost and delay in litigation and to facilitate the early and fair resolution of disputes" (r. 37A.02).

In practice, the rule is infrequently used. Most matters in civil litigation in Newfoundland and Labrador which go to mediation go there by the desire and consent of both parties, thereby circumventing the need to make application to do so.

Permanent Implementation

  • mandatory programs
  • mediation
  • rules of court
  • Supreme Court of Newfoundland and Labrador (Trial Division)
Date Event
2003 Newfoundland and Labrador Court Ordered Mediation (Rule 37A)

Newfoundland and Labrador

Supreme Court Trial Division Rule's Committee

Supreme Court of Newfoundland and Labrador (Trial Division)

Newfoundland and Labrador Supreme Court allowing court-ordered mandatory mediation in civil (non-family) cases.

Rule 37A envisions the mediation process as one "of discussion between parties...under the direction of neutral third party...to assist them in reaching a mutually acceptable resolution" (r. 37A.01(b)). 

Although the Rule contemplates "interest-based" mediation, the "procedure and methodology to be followed...may vary according to the particular style and approach of the mediator" (r. 37A.05(7)).

The Court, on the application of a party or on its own motion at any time following the filing of a defence, may order the parties to participate in mediation (r. 37A.03(1)). 

Unless otherwise ordered, the mediation must commence within 24 days of the date of such order, it should last no longer than four hours in total and the costs thereof are born equally by the parties (r. 37A.03(3)). All further proceedings are stayed until the mediator's report is filed (r. 37A.03(6)).

Once the mediation has been scheduled, the parties are required to provide the mediator and each other party with a brief statement of factual and legal issues in dispute, a summary of that party's interests and copies of all documents considered of central importance in the proceeding at least seven days before the session (r. 37A.05(2)). The mediator is required to file a mediation report within 10 days after the mediation is concluded indicating whether agreement has been reached (r. 37A.07(1)).

If an agreement has been reached at the mediation, the parties have to file a Memorandum of Settlement pursuant to r. 39.06. Otherwise, the case proceeds in the normal course
 

Concerns raised regarding Rule 37A

  • Rule 37A.03(c) contemplates that the costs of mediation are to be borne equally by the parties. This is troublesome because many litigates, in particular personal injury plaintiffs, may not have the financial resources to contribute to the costs of mediation.
  • Although the rule contemplates the establishment of the list of mediators, the rule does not set out the eligibility criteria for the persons to be placed on the list.
    CBA News at 11
  • Rule 37A.03(5) and .05(5) both contemplate additional parties attending the mediation, and in .05(5), specifically insurers. A concern has been raised that this may give such parties the opportunity to frustrate the process for their own needs. (CBA News at 11).

Rule 37A, governing Court Ordered Mediation, came into force on April 1, 2003. It applies to all non-family law civil cases.

"The purpose of this rule is to establish a mechanism to provide mandatory mediation pursuant to court order in individual cases so as to reduce cost and delay in litigation and to facilitate the early and fair resolution of disputes" (r. 37A.02).

In practice, the rule is infrequently used. Most matters in civil litigation in Newfoundland and Labrador which go to mediation go there by the desire and consent of both parties, thereby circumventing the need to make application to do so.

Permanent Implementation

  • mandatory programs
  • mediation
  • rules of court
  • Supreme Court of Newfoundland and Labrador (Trial Division)
Date Event
2003 Newfoundland and Labrador Court Ordered Mediation (Rule 37A)

Newfoundland and Labrador

Supreme Court Trial Division Rule's Committee

Supreme Court of Newfoundland and Labrador (Trial Division)

Newfoundland and Labrador Supreme Court allowing court-ordered mandatory mediation in civil (non-family) cases.

Rule 37A envisions the mediation process as one "of discussion between parties...under the direction of neutral third party...to assist them in reaching a mutually acceptable resolution" (r. 37A.01(b)). 

Although the Rule contemplates "interest-based" mediation, the "procedure and methodology to be followed...may vary according to the particular style and approach of the mediator" (r. 37A.05(7)).

The Court, on the application of a party or on its own motion at any time following the filing of a defence, may order the parties to participate in mediation (r. 37A.03(1)). 

Unless otherwise ordered, the mediation must commence within 24 days of the date of such order, it should last no longer than four hours in total and the costs thereof are born equally by the parties (r. 37A.03(3)). All further proceedings are stayed until the mediator's report is filed (r. 37A.03(6)).

Once the mediation has been scheduled, the parties are required to provide the mediator and each other party with a brief statement of factual and legal issues in dispute, a summary of that party's interests and copies of all documents considered of central importance in the proceeding at least seven days before the session (r. 37A.05(2)). The mediator is required to file a mediation report within 10 days after the mediation is concluded indicating whether agreement has been reached (r. 37A.07(1)).

If an agreement has been reached at the mediation, the parties have to file a Memorandum of Settlement pursuant to r. 39.06. Otherwise, the case proceeds in the normal course
 

Concerns raised regarding Rule 37A

  • Rule 37A.03(c) contemplates that the costs of mediation are to be borne equally by the parties. This is troublesome because many litigates, in particular personal injury plaintiffs, may not have the financial resources to contribute to the costs of mediation.
  • Although the rule contemplates the establishment of the list of mediators, the rule does not set out the eligibility criteria for the persons to be placed on the list.
    CBA News at 11
  • Rule 37A.03(5) and .05(5) both contemplate additional parties attending the mediation, and in .05(5), specifically insurers. A concern has been raised that this may give such parties the opportunity to frustrate the process for their own needs. (CBA News at 11).

Rule 37A, governing Court Ordered Mediation, came into force on April 1, 2003. It applies to all non-family law civil cases.

"The purpose of this rule is to establish a mechanism to provide mandatory mediation pursuant to court order in individual cases so as to reduce cost and delay in litigation and to facilitate the early and fair resolution of disputes" (r. 37A.02).

In practice, the rule is infrequently used. Most matters in civil litigation in Newfoundland and Labrador which go to mediation go there by the desire and consent of both parties, thereby circumventing the need to make application to do so.

Permanent Implementation

  • mandatory programs
  • mediation
  • rules of court
  • Supreme Court of Newfoundland and Labrador (Trial Division)
Date Event
2004 BC Court of Appeal Settlement Conference Program

British Columbia

Judicial Settlement Conference Committee, BC Court of Appeal

BC Court of Appeal

BC Court of Appeal practice directive introducing voluntary settlement conferences.

The settlement conference is interest-based, not rights-based, which is to say that the presiding judge does not speak to the factual or legal merits of the appeal, but rather seeks to find a mutually-agreeable resolution with the parties.

Participation in settlement conferences is entirely voluntary. All parties involved must consent to the process and anyone can revoke consent at any time. If consent is revoked during the process, the process comes to an end.

The procedure is set out in Practice Directive #8. In brief, a joint request for a settlement conference must be made, which takes the file out of the usual appeal stream and thus suspends time limits during the settlement conference process. Settlement conference procedure is handled by the Law Officer, not the regular registry staff; accordingly, materials relating to the settlement conference remain with the Law Officer and are not part of the regular appeal file.

The process involves two steps. First, following the joint request for a settlement conference, the parties (or their counsel) have an initial telephone conference with a judge, to determine if the matter is suitable for a settlement conference. If the matter is deemed suitable, the second step, a settlement conference, takes place.

BarTalk at 17
The first request for a settlement conference was made in December 2004 and the most recent, the 12th request, was made in June 2008. Of the first 11 requests, four involved family law matters; the other seven have been a mix: two involved personal injury, two involved commercial issues, one was a wrongful dismissal case, one was a human rights case, and one involved an appeal from an order striking out a statement of claim.

Four requests have progressed to a full settlement conference. In one case, the parties settled after the conference. In the other three, the parties settled at the conference. The remaining seven cases did not go to a settlement conference for various reasons: (a) at the initial teleconference a determination was made by the judge or the parties that the matter was not suitable for settlement conference; (b) a party withdrew consent; and (c) the parties agreed to discontinue the settlement conference process.

Only one request, the twelfth, was made in 2008, in a family law matter. This settlement conference had not yet concluded by the end of 2008.

A two year pre-hearing judicial settlement conference pilot project was introduced at the BC Court of Appeal in November 2004. At the end of the pilot period, the program was extended for an unlimited period.

"The purpose of a settlement conference is to assist parties to resolve appeals at an early stage, to save expense to the parties and to expedite the final resolution of the dispute" (Annual Report at 32).

Ongoing program

  • British Columbia Court of Appeal
  • practice directives
  • settlement conferences
November 2004 Pre-hearing judicial settlement conference pilot project launched
2006 Program extended for unlimited period
2004 BC Family Mediation Practicum Project

British Columbia

BC Dispute Resolution Practicum Society

Provincial Court of British Columbia (New Westminster Registry)

BC Dispute Resolution Practicum Society project to provide free mediation services from new mediators for family disputes about custody, access, guardianship, child support, and simple property matters.

The Project provides free mediation services for family disputes about custody, access, guardianship, child support, and simple property matters.

The Project was initiated as a means of providing trained, but inexperienced family mediators with more opportunities to practice their skills. In particular, it was intended as a way of meeting the specialized training requirements in family mediation, and of supervising mediators as they learn to manage the unique circumstances characterizing family disputes within the mediation process. At the same time, and in this context, family clients were to be provided with high quality mediation services.

Report at i

Each mediator is guided by a senior, highly trained mediator (or mentor), who assists the mediator to prepare for and conduct each session.

The Family Mediation Practicum Project has been operating in New Westminster since January 2004. It is funded by the Law Foundation of BC and the BC Ministry of Attorney General and is administered by the BC Dispute Resolution Practicum Society, a non-profit society.

 

Results of an evaluation of the Family Mediation Practicum Project were released in June 2005. The Report concludes that:

[T]he Family Mediation Pilot Project has clearly been a success. It has been both client-centred and appropriate in tailoring its operations to the needs of its clientele. Its structural or operational features, as well as program outcomes, have been declared a practical success. Finally, its relationships with other family justice agencies and practitioners have been collaborative and constructive, building a firm foundation upon which the Project can build a place in the family justice and mediation communities.

The Practicum Project has successfully achieved all four of the objectives articulated in connection with the project goal. As a test of a delivery model in which mediators practice their skills under the supervision of senior mediators, it has been found to be a highly effective way of providing mediators with practical experience in mediating family disputes. At the same time, high quality mediation services have been delivered to family clients - in an environment in which they feel safe, and able to participate fully in the mediation process.

Exceptionally high satisfaction ratings were reported by both of the client groups the Practicum Project serves: practicum mediators and mediation clients. Additionally, innovations such as "fast tracking" 1st joint mediation sessions, imposing a 3-session limit on mediation, and a draft or evolving Memorandum of Understanding have achieved both efficiencies and improved mediation outcomes. The biggest challenges to the Project lie largely in its external operating environment. Although gradually changing, conditions are not particularly supportive for mediation as a favoured option in dispute resolution - with the consequence that many of those who have an interest in the practice of mediation must pursue it without any particular hope of a return on their investment in it.

Obtaining ongoing, sustainable funding of the fixed cost component of the Project is a continuing source of concern. Funding agencies can, however, be assured that the Project has been cost-effective, and has contributed to our knowledge of best practices both in mediation practicum programs and, more generally, family mediation. It has, as well, been an excellent example of partnership between a government and non-profit organization - the BC Dispute Resolution Practicum Society and the Dispute Resolution Office of the Attorney General's Ministry have worked together very successfully to produce a very high-quality service. If a decision is made to confirm the Family Mediation Practicum Project as a continuing program, it can be expected that this program will make a positive contribution to the infrastructure for collaborative approaches in dispute resolution within the province.

Permanent implementation

  • alternative dispute resolution providers
  • education
  • family law
  • mediation
January 2004 Project launched as a pilot at New Westminster Registry
June 2005 Results of evaluation released
June 2005 Project made permanent
2005 Newfoundland and Labrador Case Management (Rule 18A)

Newfoundland and Labrador

Rules Committee of the Trial Division

Supreme Court of Newfoundland and Labrador (Trial Division)

Overview of the case management process Supreme Court of Newfoundland and Labrador rule.

 
An application for case management can be made on the ground that the proceeding will involve a complex issue or a lengthy trial, or that the preparation for trial or pre-trial applications in the proceeding would otherwise benefit from management, supervision and direction by a single judge.

A case management order can be obtained via an interlocutory application, informally through a request to the Chief Justice or a designated judge if all parties consent, by request to the pre-trial conference judge, or on a judge's own motion.

Once a case is approved for case management, a meeting is set up where a case judge and counsel may discuss any of the following:

  • the development of a case management plan, including milestones;
  • the procedures to be followed for further case management meetings;
  • the nature and extent of the pre-trial procedures that may be required to advance the proceedings;
  • the timing and methodology associated with the making of any application;
  • the dispensing with procedural steps associated with any application;
  • the possibility of resolving procedural steps by agreement;
  • the appropriateness of restructuring any or all of the proceedings for trial;
  • the setting or re-adjustment of timetables for steps to be taken in the proceedings;
  • the determination of readiness for trial of some or all of the proceedings, if more than one;
  • such other matters as would be discussed and dealt with at a pre-trial conference pursuant to rule 39.02(5);
  • the appropriateness of holding a settlement conference or mediation session;
  • the manner of conduct of the trial;
  • the preparation and filing of a certificate of readiness when the matter is ready for trial; and
  • any other matters pertinent to or affecting the proper conduct of the proceeding. [r.18A.06]

If a party fails to attend case management meetings, acts in a manner contrary to the spirit of Rule 18A, or obstructs the process, a judge can make any order as to costs. Provisions are also made to allow parties to participate in case management conferences through audio conferencing.

The Rules Committee of the Trial Division of the Supreme Court of Newfoundland and Labrador introduced An Amendment to the Rules of the Supreme Court on November 30, 2004. The Amendment brought in Rule 18A - Case Management. This Amendment was forwarded to the Office of the Legislative Counsel on September 19, 2004, filed on September 19, 2005, and published in the September 23, 2005, edition of The Newfoundland and Labrador Gazette, as Newfoundland and Labrador Regulation 84/05. This Rule came into force on January 1, 2006.

[T]o provide for selected proceedings a level of management and direction with respect to pre-trial procedures and preparation for trial that is more organized, coordinated and focused than what would be normally applicable to cases proceeding through the system from pleading to trial, with a view to:

  • ensuring that maximum benefit is gained from each trial day;
  • making more efficient use of Court resources;
  • ensuring adequate and accurate amounts of time are reserved for trial; and
  • providing for the public interest in access to justice in a timely and cost effective manner (Rule 18A).

Permanent implementation

  • case planning
  • rules of court
  • Supreme Court of Newfoundland and Labrador (Trial Division)
January 2006 Rule came in force

 

2006 Saskatchewan Small Claims Court - Case Management Conference

Saskatchewan

Saskatchewan Minister of Justice Advisory Committee

Small Claims Court

Overview of Saskatchewan Small Claims Court pre-trial case management process.

Saskatchewan's Small Claims Court uses a two-step process. "The first step is a case management conference (which the judge can waive) to settle the litigation or narrow the issues and resolve procedural matters. It includes familiarizing self-represented litigants with the process that will be followed at trial. The second step is trial, to which the first step has paved an efficient way." (Into the Future at 31-32)

Information packages for all stages of the process have been prepared for public use, as well as a flowchart of the overall process. This material has been made available at all court offices, placed on the Courts' website, and widely distributed to local agencies. Training and education initiatives included the preparation of a Bench Book for Judges presiding over small claims matters, a one day session for judges on case management conferences, and training sessions for court staff from each court office.
 

The Small Claims staff will prepare the documents and give you information on how to proceed. You do not need a lawyer to represent you, although you may have one if you wish. A pre-trial case management process has been introduced for small claims matters. A case management judge will assist the persons involved to settle the matter without going to trial. During the case management, the judge will be authorized to:

  • settle any issues being disputed;
  • decide any issues that do not require evidence;
  • make any appropriate order agreed to by the parties;
  • set a trial date if a trial is necessary;
  • discuss any evidence that will be required and the procedure that will be followed if a trial is necessary;
  • order the defendant to prepare a statement of defence;
  • order a party to produce any information at the case management conference or anything as evidence at trial;
  • order disclosure; and
  • make any order for the just, timely and inexpensive resolution of the action.

If settlement attempts have not resolved the dispute, a trial will be held. The judge may give any necessary directions to the persons involved to ensure the trial proceeds quickly and efficiently.
 

Website

 

A 2005 report by the Minister of Justice's Advisory Committee reviewed the small claims process. The Committee was composed of members from the Canadian Bar Association and the Law Society of Saskatchewan members. Focus groups were held with court staff, lawyers, and the public. Consultations were also held with the judiciary. The amendments to the Small Claims Act recommended in the report came into effect in 2006.

Prior to the amendments, case management conferences were already being utilized in the larger courts. They were highly successful, resulting in 50% of cases being settled out of court.

The Advisory Committee considered the alternative. The overwhelming response from those consulted was that the litigants wanted to hear the opinion of a Judge about the merits of the case, rather than of a non-judicial actor. Matters would be less likely to settle if Judges did not conduct the case management conferences.

The case management conference has two purposes:

  • settle the litigation, or
  • if no settlement can be reached, narrow the issues for trial and resolve procedural matters, to ensure a more efficient proceeding. This includes familiarizing self-represented litigants with the process which will be followed at trial.

Permanent implementation

  • case conferences
  • Saskatchewan Small Claims Court
2005 Minister of Justice Advisory Committee Report
January 2006 Amendments came into effect

 

2007 Yukon Family Law Case Conferences (Practice Direction 40)

Yukon

Supreme Court of Yukon

Practice directive mandating judicial case conferences providing information to family law litigants on available alternative dispute resolution procedures and allowing parties to discuss the appropriate procedure for their case.

This practice direction applies to all family law proceedings including a divorce petition or any proceeding where a claim for custody, access, child support or property division is made. It requires a family law case conference to be held with a judge within 60 days of the date of service of the proceeding, except in those cases that are exempt. Failure to hold a family case conference within 60 days may result in an application being struck or adjourned by the presiding judge (Practice Direction at 1).

An exemption from the requirement that a family law case conference be held can be granted by a judge (either upon an application, or without it):

  • where each party is represented by a lawyer and the lawyers agree that a conference is not required;
  • where there is a lawyer representing the claimant/applicant and the other party does not file an appearance
  • where there has been a history of violence or abuse and a party requests that there be no conference, or that each party have a separate conference;
  • where there is urgency or convenience.

The purpose of the family law case conference is to:

  • consider alternative procedures of private mediation, collaborative practice, judicial mediation, settlement and arbitration
  • consider some of the well-established principles of custody, child support, spousal support and property division
  • identify and narrow the issues
  • set timelines where appropriate.

Following the case conference, the judge may make any order that could be made under Rule 35 for pre-trial conferences. The judge may also:

  • appoint a single expert to report on financial and property issues;
  • order substituted service, interim interim or interim custody and child support, financial disclosure, preservation of property and other orders that may be appropriate based upon affidavit evidence, where matters are unopposed or uncontested;
  • recommend that a custody and access report be prepared or that a Child Advocate be appointed.

Practice Direction No. 40, governing family law case conferences, came into effect on May 1, 2007.

"[T]to ensure that all parties are aware of the alternative dispute resolution procedures that are available and to discuss the appropriate procedure for the particular case" (Practice Direction at 1).

Permanent Implementation

  • alternative dispute resolution
  • case conferences
  • family law
  • litigants
  • mandatory programs
  • practice directives
  • Supreme Court of Yukon
May 1, 2007 Practice Direction 40 took effect

 

2007 Yukon Judicial Settlement Conference (Rule 37)

Yukon

Supreme Court of Yukon

Judicial settlement conference process in Supreme Court.

 
A judge may order attendance at a settlement conference upon request of a party or on his or her own motion.
 

Priority will generally be given to family law matters, as they are usually more urgent. It is anticipated that in personal injury matters, a private mediation will be attempted before a judge will be called upon, except for those cases with a contested legal issue.

Counsel may jointly request a particular judge whose background and experience will be conducive to reaching a settlement. The senior judge will assign the settlement conference judge.

In advance of the settlement conference, the judge [may] have a phone conference with counsel to discuss the case. This will include the issues to be dealt with and their order, whether it will be a mediation, one judge's opinion or arbitration, and the timeline for filing settlement briefs. Counsel will be asked to disclose the settlement discussions to date including offers. The discussion should determine who will start first and the level of participation of counsel and parties.

The settlement conference will be conducted in a respectful way and the conduct of counsel and parties must be respectful at all times.

The settlement conference will be without prejudice, which means that nothing that is said or done can be raised at trial. All documents produced will be returned to counsel or the parties.

The settlement conference will be recorded by the judge. The recording is for the use of the judge only and will be stored in a sealed envelope in a separate file.

The settlement conference judge will not be the trial judge, unless all parties request and consent to that judge hearing the trial.

Generally, the attendance of counsel and the instructing party is required. In personal injury cases, the adjuster with settlement authority must attend. Videoconferencing may be arranged (Practice Direction at 1).

Practice Direction No. 41, Judicial Settlement Conferences, was issued on May 23, 2007 and Rule 37, Judicial Settlement Conference, came into force on September 15, 2008 as part of the reform of the Rules of Court for the Supreme Court of Yukon.

To assist parties to resolve their cases at an early stage, to alleviate expense and to expedite the final resolution of the dispute.

Permanent Implementation

  • rules of court
  • settlement conferences
  • Supreme Court of Yukon
May 23, 2007 Practice Direction No. 41 issued
Sept. 18, 2008 Rule 37 came into force
2008 Manitoba First Choice Dispute Resolution Pilot Project

Manitoba

Family Conciliation, Manitoba Department of Family Services and Housing

A Government of Manitoba pilot project offering mediation and information services to families experiencing separation and divorce.

First Choice has been developed to help parents understand the likely outcome of a traditional court-ordered assessment. The Family Court can refer parents and other family members, (hereinafter called "parent") who are having trouble reaching agreement on custody, access and private guardianship issues. First Choice can also provide follow-up assistance to the families it served, to address subsequent issues and concerns.

The First Choice pilot project involves two distinct phases:

 

1. Assessment Phase:

As soon as possible after the referral is made to Family Conciliation, both parents and possibly their lawyers, meet with a First Choice team. Each team has a male and female counsellor, experienced in evaluation and mediation. Both parents have the opportunity to describe their view of the family situation and state what they are hoping for from the court.

After the team has heard both parents and asked questions, there is a break while the team meets to discuss the case. The team then presents their opinion about what a court-ordered assessment would likely recommend, based on the parties' particular circumstances. Both parents have an opportunity to review the information with their lawyers. If a party's lawyer is not present at the assessment, the party can call their lawyer. This is arranged by the counselling team.
 

2. Mediation Phase:

If not all concerns are resolved after phase one, additional meetings can be held to mediate them. These meetings include both parents and may or may not include lawyers. The children may also be interviewed. All information brought up during the mediation is confidential and cannot be used in court.

The feedback presented to the parents by the First Choice team in phase one is given, in writing, to the Family Court judge. The team also provides a notification that a parenting agreement has been reached, or the team's recommendations and options for resolving the conflict.

The pilot project's goal is to have the assessment and mediation completed within three to four sessions. The first session typically takes up to three hours, but subsequent sessions may average 60-90 minutes depending on individual circumstances with the full process completed within 30 - 35 working days from the first session.

First Choice can also provide follow-up mediation assistance to help families resolve issues that subsequently arise.

First Choice was launched in Winnipeg as a pilot project in August 2008 to offer mediation and information services to families experiencing separation and divorce.

Ongoing pilot project

  • assessment
  • evaluation
  • family law
  • government
  • mediation
  • pilot projects
Date Event
2008 Manitoba First Choice Dispute Resolution Pilot Project

Manitoba

Family Conciliation, Manitoba Department of Family Services and Housing

A Government of Manitoba pilot project offering mediation and information services to families experiencing separation and divorce.

First Choice has been developed to help parents understand the likely outcome of a traditional court-ordered assessment. The Family Court can refer parents and other family members, (hereinafter called "parent") who are having trouble reaching agreement on custody, access and private guardianship issues. First Choice can also provide follow-up assistance to the families it served, to address subsequent issues and concerns.

The First Choice pilot project involves two distinct phases:

 

1. Assessment Phase:

As soon as possible after the referral is made to Family Conciliation, both parents and possibly their lawyers, meet with a First Choice team. Each team has a male and female counsellor, experienced in evaluation and mediation. Both parents have the opportunity to describe their view of the family situation and state what they are hoping for from the court.

After the team has heard both parents and asked questions, there is a break while the team meets to discuss the case. The team then presents their opinion about what a court-ordered assessment would likely recommend, based on the parties' particular circumstances. Both parents have an opportunity to review the information with their lawyers. If a party's lawyer is not present at the assessment, the party can call their lawyer. This is arranged by the counselling team.
 

2. Mediation Phase:

If not all concerns are resolved after phase one, additional meetings can be held to mediate them. These meetings include both parents and may or may not include lawyers. The children may also be interviewed. All information brought up during the mediation is confidential and cannot be used in court.

The feedback presented to the parents by the First Choice team in phase one is given, in writing, to the Family Court judge. The team also provides a notification that a parenting agreement has been reached, or the team's recommendations and options for resolving the conflict.

The pilot project's goal is to have the assessment and mediation completed within three to four sessions. The first session typically takes up to three hours, but subsequent sessions may average 60-90 minutes depending on individual circumstances with the full process completed within 30 - 35 working days from the first session.

First Choice can also provide follow-up mediation assistance to help families resolve issues that subsequently arise.

First Choice was launched in Winnipeg as a pilot project in August 2008 to offer mediation and information services to families experiencing separation and divorce.

Ongoing pilot project

  • assessment
  • evaluation
  • family law
  • government
  • mediation
  • pilot projects
Date Event
2009 BC Distance Mediation Project

British Columbia

B.C. Mediator Roster Society

BC Mediator Roster Society project to provide communication technology for family mediation with non-urban individuals.

In this Project, mediations are held using current information and communication technologies. Experienced family mediators use these technologies to bring families together for the mediation, rather than meeting in-person. There are many technologies families can choose from, including telephone, e-mail, videoconferencing and webconferencing. 

To be eligible for the Project's free mediation services, at least one of the participating family members must live in a non-urban community of British Columbia with a population less than 10,000. The issue(s) to be resolved must relate to separation or divorce in British Columbia. These include issues relating to parenting, financial support, and small or large family property matters. Everyone participating must agree to use technology for the mediation...

Up to six hours of mediation services are available to eligible families at no charge, provided the issues to be resolved are appropriate to mediate using information and communication technologies.

The Distance Mediation Project, was run by the B.C. Mediator Roster Society and funded by the Law Foundation of British Columbia, it offered free family mediation services to eligible families living in non-urban areas of British Columbia. The project ran between May 1, 2011 – May 15, 2012.

The project's goal was to find out how technology can best be used to provide high quality mediation services to families - especially families living in non-urban areas.   It also assisted family mediators by allowing them to  gain new knowledge about how they can use different technologies to help families work out their disagreements.

Completed

  • family law
  • information and communication technologies
  • mediation
  • alternative dispute resolution
May 15, 2012 Mediation services ended
May 1, 2011 Mediation services were offered
May 31, 2009 Pilot Project launched
2009 New Brunswick Family Court Pilot Project

New Brunswick

Court of Queen's Bench, Family Division

Pilot of an alternative model for Queen's Bench Family Division to increase efficiency, promote alternatives to court, and expedite high-conflict parties.

As part of the pilot, "all cases entering the judicial system would first appear before a quasi-judicial official appointed under the Judicature Act. This official, referred to in the Ottawa model as a family case management master, would then determine the appropriate services and immediate remedies required. (News Release'')

Recommendations of the Task Force for the Family Court Pilot Project include:

Masters

Masters (appointed individuals with at least 10 years of practical family law experience) would play a key role in the project and be responsible for the efficient flow of cases through the judicial system.

Stage 1
The Court system will be accessed by parties through:

  • a private lawyer,
  • Domestic Legal Aid, or
  • self-representation.
If they are self-represented, they will visit the Family Law Information Centre (FLIC) located in the courthouse. The Centre will be fully automated. The client will use a talking touch screen to access what they require. They will print the forms needed from a dispensing machine for a printing fee. The same forms will be available online.

Report at 47

Stage 2

The party will file an originating process and an application for triage together with a copy of their last year's income tax return. They will be assigned a date for the triage process and will serve the opposing party with this document. The respondent will complete their response and file and serve it. The documents will be an information page. There will be no affidavit evidence at this stage.

Report at 47

Stage 3

Both parties will attend at the triage session. If they have a lawyer, the lawyer will also attend. This session will be presented with 15-20 cases at the same time and is scheduled for one-half day. The opening presenter will provide information on:

  • The effects of separation and conflict on children. A short video similar to For the Sake of the Children will be shown. Clients will be advised that any of them who intend to file for motions or a trial involving children will be required to complete the For the Sake of the Children course prior to receiving a court date.
  • The basic principles of support and division of property.
  • The various methods of dispute resolution - mediation, collaboration, arbitration, negotiation and litigation.
    Report at 48

Stage 4

After the 30-minute presentation, clients will be asked to self-identify:

  • Resolved: Those couples who have resolved their issues will meet with a master to finalize their order and sign it with the Master.
  • Mediation: Those couples who believe they can make progress in mediation will be moved to another area and wait to see a mediator. They will each spend 15-20 minutes with the mediator to ensure that they can continue in this process and then will book their sessions with the mediator. Mediation will be paid for on a sliding scale dependent upon their annual income.
  • Case conference: Those remaining couples will have a case conference with a master or a judge who will attempt to assist them in reaching a settlement. If one is reached, they will wait until the order is prepared and they will sign it. If not reached, the master will give them further direction on a method of dispute resolution that the master feels is suitable for their case. The master will identify high-conflict cases at this stage.
    Report at 48

Stage 5

Clients who are not successful in resolution at Stage 4 will continue through the system in two streams: mediation and case conferencing.

Mediation: Will be voluntary. Clients will continue in it to completion or switch into the court stream if it fails.

Court stream: In this stream, clients will have access to justice in two distinct ways:

  • Motions: Clients have the opportunity to file a motion and be heard as needed on substantive issues, such as interim relief.
  • Case conferences: Procedural issues will be handled by case conferences upon the request of either party. The judge or master who heard their triage meeting will continue to assist them by way of case conference. Case conferences are informal meetings. They are mostly for procedural issues and have the responsibility to ensure that the file is court-ready. A judge or master may order costs against any party who does not follow the procedural rules. Substantive issues such as immediate changes to access and enforcement of access may also be resolved at this stage.
    Report at 48-49

Stage 6

Clients who are in the court stream will have a settlement conference before their trial dates are set.

At the settlement conference stage, the parties may choose one of two routes:

  • Classic settlement conference: The same as is currently in place under Rule 50, with two modifications: a. Settlement conferences will occur early in the life of a court file - within two or three months of the initial filing of the originating process; b. The applicant's settlement brief will be due 30 days prior to the settlement conference and provided to the respondent, with the respondent's brief due 10 days later (20 days before the conference).
  • Binding settlement conference with a judge of their mutual choice. The decision of this judge is final and is not open to appeal.
    Report at 49

Stage 7

For those files that continue to be unresolved, a trial will be held. The trial will not be in front of the judge used in the case conference or settlement conference.

Report at 49

Access to Family Justice Task Force, led by Justice Raymond Guerette of Campbellton, was appointed in February 2008 and mandated to make recommendations that would lead to:

  • more timely access to justice in resolving family law disputes
  • expanded use of alternatives to family courts to resolve family law issues
  • increased access to legal information and legal assistance in family law matters, especially for the poor, single parents and First Nations people.
    Report at publications (2)

Following a release of the Task Force's Report, an implementation committee was formed to implement the recommendations contained in the Report. 

One such recommendation is the implementation of an alternative model for the Court of Queen's Bench, Family Division, based on the Ottawa Family Court pilot project, which is planned to be piloted in the Fall of 2009.

  • To increase the efficiencies of all Court matters that touch the lives of children, especially those in child protection.
  • To identify those families who would benefit from professionals who could assist them to settle their issues.
  • To identify high-conflict parties early and move them to trial expeditiously, while giving them access to justice through case conferencing while they wait for their court date.
    Report at 47

Piolt Project

  • alternative dispute resolution
  • Court of Queen's Bench of New Brunswick
  • delay
  • family courts
February 2008 Task Force appointed
January 2009 Report of the Task Force presented
February 2010 Pilot project details released
2009 New Brunswick Family Law Information Centre (FLIC)

New Brunswick

Court of Queen's Bench, Family Division

Access to Family Justice Task Force recommendation for a legal education and information centre for self-represented litigants with family law issues.

For the purpose of assisting self-represented parties accessing the Court system (as part of Stage 1), the Task Force recommended a creation of a FLIC, to be located in the courthouse.

Need for a Family Law Information Centre (FLIC)

The self-represented litigant needs our assistance, as does the judge, in the area of the gathering and presentation of the required information. To this end, Family Law Information Centres (FLIC) in the courthouse will benefit everyone in the system.

Ontario has a FLIC in most of the courthouses where family law courts sit. We would do well to imitate them rather than attempting to redesign the wheel. In most family law court facilities, there is a room which could be easily adapted into a technological information centre that includes a step-by-step touch screen to provide an information video on court procedures and required forms, a frequently-asked-questions icon, examples of forms, and simple rules of procedure court etiquette. As well, there should be a vending machine to produce a set of forms which are user-friendly. (Suggested cost per set of forms: $20.) The Ontario forms work very well as they are - for the most part - tick boxes and short answers. The forms, which commence the proceeding, do not require affidavits or specific statute citation. These forms are all that are required to get the self-represented litigant before a judge or other judicial officer in a timely manner.

The rooms would not require personnel for monitoring as they would be located next to the commissionaire or sheriff stations. The content would come from a central computer. Currently, the counter staff in most Family Court offices are not only shorthanded but spend an inordinate part of the day answering questions or having to explain forms to self-represented litigants.

Report at 49-50

Access to Family Justice Task Force, led by Justice Raymond Guerette of Campbellton, was appointed in February 2008 and mandated to make recommendations that would lead to:

  • more timely access to justice in resolving family law disputes
  • expanded use of alternatives to family courts to resolve family law issues
  • increased access to legal information and legal assistance in family law matters, especially for the poor, single parents and First Nations people.
    Report at publications (2)

Following a release of the Task Force's Report, an implementation committee was formed to implement the recommendations contained in the Report. 

One such recommendation is the creation of Family Law Information Centre (FLIC) as part of the alternative model for the Court of Queen's Bench, Family Division, based on the Ottawa Family Court pilot project, which is planned to be piloted in the Fall of 2009.

  • alternative dispute resolution
  • Court of Queen's Bench of New Brunswick
  • delay
  • family courts
February 2008 Task Force appointed
January 2009 Report of the Task Force presented
Fall 2009 Proposed date for pilot
2010 Vancouver Justice Access Centre Self-help and Information Services (previously BC Supreme Court Self-Help Information Centre)

British Columbia

Collaboration between government and non-governmental bodies

BC Supreme Court, Civil and Family divisions

Evaluation objectives flowing from project objectives can be itemized as follows:

  • To determine the degree to which the centre assists users to access information, education and referrals services.
  • To determine the effectiveness of the centre service delivery model including the collaborative and consultative structure to which government and community partners contribute.
  • To identify effective practices and/or any barriers in the implementation of the project that can inform future program implementation.
  • To determine the degree to which the Centre, by increasing unrepresented litigant's access to justice, also facilities efficiencies in the court system.
  • Qualitative information was gathered in 116 interviews carried out during the project, including 35 interviews with SHC users (Final Evaluation at 13, 8).

Self-help centre for unrepresented litigants offering advice, information, and education about procedures in the Supreme Court of British Columbia.
The Supreme Court Self-Help Information Centre is now part of the Vancouver Justice Access Centre, where self-help and information services are provided. This has led to a wider range of civil law information and self-help topics, as well as references to services that are available through the Vancouver Justice Access Centre.

Over the past five to ten years, unrepresented litigants have emerged as an identifiable target group for services. In response to the increasing number of unrepresented litigants, justice system partners began the Developing Models for Coordinated Services for Self-Representing Litigants project in the spring of 2004.

Government and non-government agencies collaborated in designing the Centre and determining the services that would help unrepresented litigants.... The pilot project received funding from the Law Foundation of BC, the Vancouver Foundation, and the Ministry of Attorney General. It also received extensive contributions of technical expertise, staff resources, and products from all the participating agencies, both government and non-government (Final Evaluation at 12-13).

The purpose of the pilot project was to design a self-help centre (SHC) for unrepresented litigants that would facilitate access to justice by offering advice, information, and education about procedures in the Supreme Court of British Columbia. SHC services comprise of a range of resources developed by partnering organizations as well as the in-person service delivered by the two staff who work at the physical location. The office is open for walk-in service and there is no financial eligibility test for accessing services and resources. Although the Centre's purpose is to provide services to unrepresented litigants in its Vancouver location, services are offered to all walk-ins, regardless of where their Supreme Court case originates (Final Evaluation at 6).

Interview data shows that the centre was providing a unique set of self-help services and was forming part of a larger context of emerging services for unrepresented litigants.

Users reported the centre as largely effective in satisfying their needs and in helping them prepare for court. In addition, the centre was seen as effective in connecting users to appropriate services through referrals. Through these actions, the centre was also seen to yield efficiencies at the level of court proceedings and the operation of the registry (Final Evaluation at 8).

Ongoing collaboration

  • court assistance
  • legal information centres
  • public legal education and information
  • self-represented litigants
  • Supreme Court of British Columbia
  • family law
  • alternative dispute resolution
April 2005 Pilot project commenced
April 2006

Program funded for 2006-2007

June 2010

The Supreme Court Self-help Information Centre is now called Self-help and Information Services and is part of the Vancouver Justice Access Centre.

 

2010 Vancouver Justice Access Centre Self-help and Information Services (previously BC Supreme Court Self-Help Information Centre)

British Columbia

Collaboration between government and non-governmental bodies

BC Supreme Court, Civil and Family divisions

Evaluation objectives flowing from project objectives can be itemized as follows:

  • To determine the degree to which the centre assists users to access information, education and referrals services.
  • To determine the effectiveness of the centre service delivery model including the collaborative and consultative structure to which government and community partners contribute.
  • To identify effective practices and/or any barriers in the implementation of the project that can inform future program implementation.
  • To determine the degree to which the Centre, by increasing unrepresented litigant's access to justice, also facilities efficiencies in the court system.
  • Qualitative information was gathered in 116 interviews carried out during the project, including 35 interviews with SHC users (Final Evaluation at 13, 8).

Self-help centre for unrepresented litigants offering advice, information, and education about procedures in the Supreme Court of British Columbia.
The Supreme Court Self-Help Information Centre is now part of the Vancouver Justice Access Centre, where self-help and information services are provided. This has led to a wider range of civil law information and self-help topics, as well as references to services that are available through the Vancouver Justice Access Centre.

Over the past five to ten years, unrepresented litigants have emerged as an identifiable target group for services. In response to the increasing number of unrepresented litigants, justice system partners began the Developing Models for Coordinated Services for Self-Representing Litigants project in the spring of 2004.

Government and non-government agencies collaborated in designing the Centre and determining the services that would help unrepresented litigants.... The pilot project received funding from the Law Foundation of BC, the Vancouver Foundation, and the Ministry of Attorney General. It also received extensive contributions of technical expertise, staff resources, and products from all the participating agencies, both government and non-government (Final Evaluation at 12-13).

The purpose of the pilot project was to design a self-help centre (SHC) for unrepresented litigants that would facilitate access to justice by offering advice, information, and education about procedures in the Supreme Court of British Columbia. SHC services comprise of a range of resources developed by partnering organizations as well as the in-person service delivered by the two staff who work at the physical location. The office is open for walk-in service and there is no financial eligibility test for accessing services and resources. Although the Centre's purpose is to provide services to unrepresented litigants in its Vancouver location, services are offered to all walk-ins, regardless of where their Supreme Court case originates (Final Evaluation at 6).

Interview data shows that the centre was providing a unique set of self-help services and was forming part of a larger context of emerging services for unrepresented litigants.

Users reported the centre as largely effective in satisfying their needs and in helping them prepare for court. In addition, the centre was seen as effective in connecting users to appropriate services through referrals. Through these actions, the centre was also seen to yield efficiencies at the level of court proceedings and the operation of the registry (Final Evaluation at 8).

Ongoing collaboration

  • court assistance
  • legal information centres
  • public legal education and information
  • self-represented litigants
  • Supreme Court of British Columbia
  • family law
  • alternative dispute resolution
April 2005 Pilot project commenced
April 2006

Program funded for 2006-2007

June 2010

The Supreme Court Self-help Information Centre is now called Self-help and Information Services and is part of the Vancouver Justice Access Centre.

 

2011 Awards of Costs and Access to Justice

Saskatchewan

Law Reform Commission of Saskatchewan    

Court of Queen’s Bench    

Any individual or corporation considering whether to launch or defend a lawsuit has to consider the cost of litigation. In Saskatchewan, the unsuccessful party in a lawsuit is usually ordered to pay costs to the successful side. However, the costs awarded will usually be substantially less than the full legal bill incurred by the successful party. Several effects follow from this “partial indemnity” costs regime:
1. The successful litigant will be out-of-pocket for the shortfall, reducing the actual compensation recovered.
2. The unsuccessful litigant will have to pay part of the other side’s legal fees, which may discourage a party with a good but uncertain case from risking litigation.
3. Both plaintiffs and defendants may seek to avoid the cost of litigation by settling without going to court.

The costs regime operating in Saskatchewan is not universal. While the partial indemnity approach is favoured in all the common law provinces and in England, the general rule in the United States is to award no costs to indemnify for legal fees. In the civil law nations of Europe, on the other hand, a successful litigant can expect to be fully indemnified by the other party. Each costs regime has its defenders. While the Law Reform Commission has decided not to proceed further with work on this issue, this paper is intended to encourage discussion of the effect of the costs regime. It raises issues rather than possible solutions to this difficult problem. The paper introduces the topic and briefly describes the cost regime in Saskatchewan and other jurisdictions that award costs on a partial indemnity basis, and contrasts it with full and no indemnity systems. 

While the Law Reform Commission has decided not to proceed with further work on this issue, this paper is intended to encourage discussion of the effect of the costs regime. It raises issues rather than possible solutions to this difficult problem. The next section of the paper briefly describes the cost regime in Saskatchewan and other jurisdictions that award costs on a partial indemnity basis, and contrasts it with full and no indemnity systems. The final section of the paper canvasses arguments that have been advanced in favour of each system. 
 

Completed

  • Access to justice 
  • Cost to justice 
  • business
  • alternative dispute resolution