News and Views Issue 2: Fall 1999
Ontario Mandatory Mediation Program
By Ann Merritt, Provincial Mediation Coordinator, Mandatory Mediation Program, Ontario Ministry of the Attorney GeneralWhat is the Ontario Mandatory Mediation Program?
On January 4, 1999, Rule 24.1 of the Rules of Civil Procedure came into effect, establishing the Ontario Mandatory Mediation Program.
The Ontario Mandatory Mediation Program was designed to help parties settle their cases early in the litigation process, thereby saving both time and money. The Program is a key component of the government's Civil Justice Reform strategy, recommended by the Ontario Civil Justice Review, which has the objective of creating a modern, faster, more affordable and accessible civil justice system. The Mandatory Mediation Program was developed in consultation with over 200 stakeholders, including representatives from the mediation, legal and business communities and the judiciary.
The Program builds on the experience of two prior mediation pilot projects in the province, established by Practice Direction. In July 1995, the Alternative Dispute Resolution Centre was established in Toronto as a voluntary program and, in January 1997, a mandatory mediation project was implemented in Ottawa. The results of these pilots were impressive, with approximately two out of three cases either fully or partially settling within 60 days of the mediation session.
Under Rule 24.1, civil, non-family, actions that are subject to case management are referred to mandatory mediation. In addition, effective September 1, 1999, contested estates matters will be referred to mandatory mediation under a complementary Rule of Civil Procedure (Rule 75.1).
The Mandatory Mediation Program was introduced as a pilot program in the City of Toronto and the Regional Municipality of Ottawa-Carleton and is expected to expand throughout Ontario over the next several years. The Program is being evaluated to determine its impact on the civil justice system.
How does the Mandatory Mediation Program work?
- Defended civil, case-managed (non-family) actions and contested estates matters
are referred on a mandatory basis to a three-hour mediation session. Litigants
may opt out of the mediation process only by order of a Case Management Master
or Judge.
- The mediation session must take place within 90 days after the first defence
is filed, unless the parties obtain a court order either exempting them from mediation
or abridging or extending the time. For standard track cases, parties may consent
to a postponement of up to 60 days. (In estates matters, the time frame for the
mediation is set by the court in an order providing directions relating to the
mediation).
- The mediation is conducted by a private-sector mediator. Parties may agree to select a mediator from an approved roster of mediators, or they may agree to choose a mediator who is not on the roster. This decision must be made within 30 days after the first defence is filed. (In estates matters, a mediator must be chosen within 30 days of the court order for directions).
- If the parties cannot agree on a mediator, one will be appointed for them
by a court official known as the Local Mediation Coordinator, who is responsible
for administering the Program.
- 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.
- If any party fails to submit a Statement of Issues or to attend within the
first 30 minutes of the mediation session, the mediator may cancel the mediation
session and file a Certificate of Non-Compliance with the Local Mediation Coordinator.
The party responsible for the cancellation will be required to pay any cancellation
fees charged by the mediator and may be subject to sanctions imposed by the court.
- Agreements reached during mediation must be signed by the parties or their
lawyers and are legally binding. Cases that do not settle during mediation continue
down the traditional litigation path.
- All parties share the cost of the mediation session. Mediation fees are prescribed
by a Regulation under the Administration of Justice Act. For example, in a two
party case, a maximum fee of $300 per party is charged. Should the parties wish
to continue beyond the three-hour session, fees must be agreed to by the parties
and the mediator prior to the commencement of the initial mediation. (In estates
matters, the court has authority to apportion fees among the parties.)
- Mediation services are provided to all litigants. An access plan is available
for parties who cannot afford mediation services.
- After the session, the mediator must complete and file a report on the outcome of the mediation.
How is the Mandatory Mediation Program administered?
The Office of the Provincial Mediation Coordinator is responsible for implementing and administering the Program for the province. Local Mediation Coordinators are responsible for the day-to-day operation of the Program in each county covered by the Mandatory Mediation Rule.
Local Mediation Committees, comprised of representatives from the judiciary, bar, mediation community, public and Ministry staff, are responsible for selecting mediators for the roster based on approved guidelines. The Committees are also responsible for monitoring mediator performance and responding to complaints.
More information about the Program is available on the Ministry of the Attorney General web site at: http://www.attorneygeneral.jus.gov.on.ca