Mediation Should be Mandatory

Back in 1999, mandatory mediation was introduced in a few jurisdictions in Ontario on a trial basis. This means that mandatory mediation has been part of the legal system in Ontario for as long as I have been a part of it, having been called to the Bar in February 1999.

In 2001, a report was submitted to the Civil Rules Committee: Evaluation Committee for the Mandatory Mediation Pilot Project, reviewing the first 23 months of the experiment. The 2001 Hann Report is detailed and lengthy. However, some key findings from the report included:

• Mandatory mediation resulted in decreased costs to litigants;
• In 85% of the cases, mandatory mediation was assessed as having a positive impact on reducing costs to litigants and in 57% of cases, a major positive impact;
• Mandatory mediation 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 did not completely settle;
• In general, litigants and lawyers expressed considerable satisfaction with the mandatory mediation process under Rule 24.1;
• Mandatory mediation frees up court time and judicial resources;
• Mediation allows many benefits not afforded by trial:
  • ability to incorporate creative terms of settlement that may better serve party interests;
  • confidentiality.

At same time, because settlement is voluntary, if mediation is not appropriate then matters can still proceed to trial with all the rights and responsibilities that entails.