Inventory of Reforms

Ontario Mandatory Mediation Program (Rules 24.1 and 75.1)

Year:
1999

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

Status:
Permanent Implementation

Jurisdiction:
Ontario

Court:
Superior Court of Justice (Toronto, Ottawa and Windsor)

Body Responsible:
Civil Rules Committee

Timeline:
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

Publications:
Robert G. Hann & Carl Baar, Executive Summary and RecommendationsPDFExternal Link (Robert Hann and Associates Limited, March 2001). [Executive Summary]
Report of the Evaluation Committee for the Mandatory Mediation Rule Pilot Project EvaluationPDFExternal Link (Evaluation Committee of the Ontario Civil Rules Committee, March 2001).
Civil Rules Committee, Consultation PaperPDFExternal Link (Court of Appeal for Ontario, October 2008). [Consultation Paper]
General Information – Ontario Mandatory Mediation ProgramExternal Link (website) (Ministry of the Attorney General, 2009). [General Information]
Garry D. Watson & Michael McGowan, Ontario Civil Practice – Transition Guide 2009/2010: Amendments to the RulesPDFExternal Link (Carswell, May 2009). [Amendments]

Related Reforms:
Proposed amendment: Ontario Case Management (Proposed New Rule 77)

Development:
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.

Purpose:
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.

Description of Reforms:
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

Criteria and Methods of Evaluation:
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

Results:
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

Revision History:
This summary was last reviewed in Nov 21, 2013