Access to Justice, Mediation: Panacea or Pariah?
The Honourable Warren K. Winkler Chief Justice of Ontario
As we embark upon the twenty-first century, access to justice is the pre-eminent issue for civil justice reform. But the issue is by no means new. Access to justice for the forgotten middle-class first emerged as a concern in the mid 1970’s. In response, a number of initiatives followed, including the concept of pre-paid legal insurance, which then became a project for the Canadian Bar Association, and also led to the creation of a program at the University of Windsor’s Faculty of Law. Although some of this early impetus for change has waned in the course of thirty years, the problem of providing affordable civil justice for middle-income earners has persisted and perhaps even worsened.
In a recent article entitled “Access to Justice – A Basic Right,” the Toronto Star reported that the cost of taking a routine civil case through to a three-day trial in Ontario is about $60,000.00, more than the average Canadian family earns in a year. Meanwhile, as access to justice has now become a concern of major proportion, mediation has emerged as a possible partial solution to what many have come to believe is an insoluble problem.
Not everyone, of course, is sanguine about mediation’s potential to alleviate the barriers to speedy, affordable justice. Opponents argue that mediation is “soft justice,” nothing more than an additional layer of costs in the litigation stream and a process fundamentally at odds with the role of the court as decision maker. They add that judges are not equipped for, and are not comfortable with, the unstructured nature of mediation.
Proponents, on the other hand, say that mediation can be an integral part of our civil justice system, providing a timely solution for disputes and thus minimizing costs to litigants. They argue that outside mediators are the only expandable resource for an already financially strained court system, and that we should capitalize on this valuable resource, not reject it. Moreover, they point out that mediation has succeeded in ameliorating systemic problems in the civil justice system in the Toronto Region of the Superior Court of Justice. On balance, my experience has been that the benefits of mediation outweigh the detriments, and that mediation can be most useful in mitigating the depth and severity of the problem of access to justice.
The Tide Toward Mediation
This seems to be the prevailing view today. Indeed, mediation is the “flavour of the month” in civil justice circles, both inside and outside Canada, thus, for example, the Law Society of Upper Canada requires lawyers in Ontario to advise clients of the availability of mediation. And, virtually everywhere, law school curricula include courses in mediation to which students flock in great numbers.
If the movement toward mediation is now so strong as to constitute a tide, then even the most senior and prominent and skeptical of counsel appear willing to be carried along in it. Even amongst those who once looked upon the process with disdain, mediation is now regarded as a generic solution to adversarial conflict. More and more, continuing legal education programs focus upon mediation advocacy training. Many retired judges have prolonged their careers in the law by becoming experts in mediation and other forms of ADR. One is pressed to point to any other single change or development that has had such a marked impact on the civil justice system in the common law world.
Outside the legal profession, for example, in the commercial world, many large multi-national corporations now mandate as policy that mediation be explored before embarking any lengthy, costly litigation is undertaken. Inside the profession of law, in fields other than general civil and commercial litigation, lawyers specializing in labour, family, and insurance law long ago sought out ways, other than through the traditional court system, to provide access to justice for their clients at more reasonable costs. Practitioners in those areas have used mediation to their advantage for years and many of the most successful mediators can trace their origins to those fields of practice.
The Popularity of ADR
The popularity of ADR has at its base the escalation in legal costs. Law firms have replaced “value-based” billing with an approach most accurately described as “hourly-rate-multiplied-by-docketed-time.” The result has been to cause clients to search for more cost-effective ways of settling their disputes. And in large measure ADR has provided the alternative clients were looking for. Lawyers have thus adjusted their training and expertise to accommodate their clients’ needs and to enable them to fit into the changing dynamic that ADR encompasses.
The advantages do not end with costs savings. Most rational litigants would prefer a settlement that they have played a role in fashioning. Through mediation, the risk and uncertainty that attaches to a courtroom setting in which a decision is imposed by a randomly selected judge is replaced with a resolution crafted by the parties themselves with the assistance of a mediator the litigants themselves have chosen. Moreover, a mediated resolution can encompass the entire dispute between the parties, not just a narrow issue that is before a court. In addition, a mediated resolution is all the more valuable and meaningful in disputes where the relationship between the parties is longstanding and ongoing. Further, mediation ensures a private and confidential process, of importance in sensitive cases. Last, but not least, a party can always pull back from mediation; if the mediation process fails, the parties are not foreclosed from continuing on to trial or from trying to settle the case later at a more opportune time. Ultimately, if the mediation succeeds, the result for the parties inevitably is considerable savings in time and money.
Given all its potential advantages, ADR has naturally grown in popularity and is now an integral part of the litigation process. In the current climate, when the cost of litigation continues to be so prohibitive for so many, responsible lawyers will advise clients enmeshed in lawsuits to at least consider mediation as an option, whether or not the Law Society mandates that this be done.
The Choice to Mediate
This is not to suggest that mediation will or ought to be the whole or even the centre of our civil justice system. It can only be part of the matrix. For one thing, not every type of case is amenable to mediation. Even in those cases ripe for mediation, the terms of any negotiated settlement will be dictated, or at least significantly influenced, by a party’s knowledge of what the “non-mediated” result might look like. Obviously, a party with a strong case on the merits can expect to negotiate a more favourable result than a party with a weak case, which is as it should be.
Quite apart from the merits of a party's case, the “non-mediated” alternative which will drive settlement discussions also refers to process. Parties, particularly vulnerable parties, will approach the ADR process very differently, depending on whether or not a trial is affordable and available without unreasonable delay. Even in cases where there is an imbalance of power between the parties, mediation may still prove to be at once a suitable and useful device.
The risk in any mediation, however, is that the negotiations which take place during the process, and the terms of any settlement, will become badly lopsided if the court, the legal profession, and the government do not redouble their efforts to tackle the costs and delays which continue to plague the civil and family justice systems. Nothing focuses minds better at mediation than the prospect of an early trial date. The greatest service that trial courts can provide to assist parties in mediating their disputes is to ensure: first, that judges are available to try the case if the mediation fails; and second, that trials are conducted in a way that makes them as affordable as possible. No party should be forced to take an unfair settlement at mediation simply because the opponent will be able to grind him, her or it down and drag the case out.
What Mediation Means and When It May Not Work
Mediation means different things to different people. To some, it conveys the notion of a facilitative role by a specialist in the area of the dispute. To others, it refers to a third party neutral evaluation so that the litigants can assess their respective positions more accurately and come to a solution themselves. Most often, mediation connotes a combination of these attributes. Mediators almost always have a style of their own that is at once facilitative, evaluative, and persuasive. Parties choose a mediator based on their knowledge of his or her style and area of expertise, preferring those who best accord with their perception of what best suits the nature of the dispute and the personalities involved. Central to mediation’s success and popularity is the parties’ initial willingness to agree upon the mediator.
As with almost everything that is the subject of recent conversion, the question arises, “Does it have general application?” In the civil litigation context, is mediation something that ought to be pursued in every case, regardless of the circumstances?
The answer that I propose to these questions begins with the following proposition: for every general rule, there is a corresponding general exception. My experience suggests that certain types or categories of dispute do not lend themselves well to mediated resolution. One such category, for instance, would include those disputes involving apparently well-founded allegations of illegality or impropriety. Cases based on allegations of fraudulent conduct or illegal behaviour are not conducive to mediation because the polarized positions that characterize these disputes inhibit discussion. Moreover, they often place the mediator in an impossible ethical position.
Another category of cases inappropriate for mediation are those in which, for whatever reason, the parties are not fully informed of the issues. In some of these cases the disclosure process is incomplete, for example, where the decision maker in a large organization has not received candid advice from subordinates or underlings. Counsel who settle cases without all the accurate facts leave themselves open to suits for negligence. It is rare for settlement to occur where the parties cannot properly assess the strengths and weaknesses of their case and that of their opponent. Cases where the damages have not yet crystallized, such as personal injuries, are ill suited for mediation, because any settlement is bound to be premature or uninformed.
Similarly, mediation is not suited to a case where at least one of the parties has a strong aversion to the process. However, parties who are merely indifferent to or not especially keen about mediation still frequently benefit from the process and many cases settle even in these circumstances. But where the aversion to mediation is particularly strong, then the process will likely fail.
The converse is also true. Any case in which a party is motivated to engage in mediation, but only for improper tactical reasons, is not one appropriate for mediation. There are many examples. A party may want mediation, not with a view to settlement, but to carry out an illicit discovery; to test the opponent's resolve; to tease out disclosure of an improvident settlement position to later advantage; to intimidate the opponent into abandoning the case; or to further some other improper purpose, such as to disclose publicly that mediation is ongoing. In every one of these scenarios, the mediator runs the risk of becoming a foil for the wrongdoer. To be sure, such cases are not always easily identified. Often it is only after the mediation has begun that the abuse of process becomes obvious. Once apparent, however, the process should be halted as quickly and as discretely as possible.
Some mediators believe that if any party to a dispute is self-represented mediation should not be undertaken. The belief is that in this situation the unrepresented party is at a disadvantage and will seek to rely on the mediator for advice either expressly or implicitly, thus placing the mediator in an untenable position.
Finally, in certain cases the parties simply want a judicial determination of their rights, win or lose, not a mediated resolution. In that event, they are entitled to a trial and ought not to feel pressured in a settlement meeting to accept a compromise they are not interested in. ADR is not meant to subvert the conventional litigation process. Parties are entitled to have their rights decided in a court with appropriate procedural safeguards. In particular, there is a view that certain types of cases involving public issues, for example pay equity claims, should be litigated to a judicial determination in order to have precedential value to society at large.
Cases That Should Be Mediated
The corollary to the general rule that some types of cases ought not to be mediated is that other types should always be mediated. These include wrongful dismissal cases, family law matters, and any dispute in which there exists an imbalance in terms of financial resources or the ability to withstand delay, either occasional or deliberate on the part of the opponent. All these cases, in my opinion, must be mediated at as early a stage in the proceeding as is likely to be fruitful.
Disputes in which there is an overwhelming public interest in prompt resolution ought to be mediated in every instance. The Air Canada restructuring is an example. There, the future of a Canadian institution employing nearly forty thousand people nationwide could not be left to the vagaries of a conventional adversarial process. The dispute between Ontario Hydro and the Power Workers’ Union is another example: the case required mediation, because at stake was hydro-electric power service to the citizens of Ontario and the continental power grid. The Walkerton water disaster is yet another instance in which the mediation process was called for: the mediation led to a settlement, and avoided years of costly litigation and all the inevitable consequential delays in delivering benefits to victims.
Cases where there is “no litigation option” comprise another group of matters to be mediated in every instance. I use the term “no litigation option” to describe cases in which the parties cannot litigate in a public forum because a public display of the dispute would bring in a collateral player, a government or an outside party or group, to the disadvantage of both parties. A dysfunctional publicly funded charity, for example, does not want to air its dirty laundry publicly, lest all sides to the dispute end up soiled. The parties to the dispute must resolve their problem, but they do not, as an alternative, have access to the public forum of the courts to do so because of the politics of and risks inherent to the situation.
As a general rule, claims where the monetary and non-monetary costs of litigation are disproportionately high in comparison to the issues in dispute should always, it seems to me, be mediated. The economies resulting from a successful mediation are essential in these types of cases. When mediation is not sought or provided in these cases, the costs incurred in them will simply continue to build and ultimately render them unsettleable.
Class proceedings are also among those cases which, because the return to the class members may be small in comparison to the amount of their claim, ought to be mediated prior to the common issues trial. If the mediation leads to settlement, the inclusion of a claims procedure in the settlement agreement can greatly simplify the processing of individual claims. Mediation greatly increases the chance of addressing these issues constructively.
Mediation in Practice
I have generally categorized the types of cases set out above as those which should never and those which should always be mediated. But I wish to qualify these bold, broad assertions by reiterating my overall shaping proposition: for every general rule, there is a general exception. Most experienced mediators have successfully mediated disputes of the type that I designate as those that should never be mediated and likewise failed in cases that should always be mediated. For example, the YBM Magnex stock fraud case was successfully resolved through mediation. In the circumstances, the best advice perhaps is to be guarded and cautious in attempting to mediate cases in the “never” category and not overly confident in undertaking cases in the “always” category. It is good to remember too, that the preponderance of cases do not fall neatly within either of the extremes. All these cases, constituting a clear majority of the whole, should be mediated as a part of any modern civil justice system that holds as its central tenets the goals of access to justice, proportionality, and judicial economy.
As a matter of public policy, mediation as part of our civil justice system is here to stay. On balance, it tends to promote and enhance access to justice, because it enables parties to resolve their disputes as cheaply and as quickly as possible. Mediation is not a cure-all. But many cases that would otherwise drag on interminably at considerable cost and anxiety to the parties can be resolved through the efforts of skilled mediators. Given the chances for success, the use of mediation is justified in virtually all cases in the civil justice system.
An illustrative implementation of mediation at the trial level is the 2004 Toronto Practice Direction. The early mandatory mediation aspect of universal case management in the Toronto Region of the Superior Court of Justice prior to the Practice Direction suffered from the fact that it was “too early” to enable the parties to be adequately prepared to settle advisedly. The Practice Direction, later to become Rule 78 of the Rules of Civil Procedure, sought to cure the problem by altering the timing of mandatory mediation so that it occurred at a time the parties chose but before they could obtain a trial date. Thus, rather than eliminate mandatory mediation altogether, mediation now became a centerpiece of the pre-trial process.
In recognition of the truism that mediation is all about “timing, timing and timing,” the adjustment so that mediation takes place when it is most likely to succeed has meant that the success rate of mediation has skyrocketed. Since the timelines for mediation have been extended, the success rate for mandatory mediations has almost doubled. Moreover, the scope of mandatory mediation has been expanded to encompass simplified procedure cases. Given that the simplified procedure process was initially intended to promote affordable, accessible, and timely justice for smaller claims, it was surprising to some that mandatory mediation was not included within the former simplified procedure rules. Since mediation was extended to simplified procedure cases, the number of pre-trials in simplified procedure cases has been reduced to about one-third, signifying that the cases are settling at the mandatory mediation stage. Even in those cases where mandatory mediation is unsuccessful, mediation acts as a useful prelude for subsequent mediation at the pre-trial stage, enhancing the prospect of success there.
The civil justice system in Toronto Region has a further added mediation element, known colloquially as “designated hitter” mediation, a process conducted just prior to trial by handpicked judicial mediators with expertise in the field. The overall result, therefore, is a three-pronged or three-stage mediation system: mandatory mediation conducted by outside court mediators, pre-trial conferences, and designated hitter mediation. And the system is working; the number of civil cases going to trial in Toronto has been dramatically reduced dramatically, with attendant cost savings to the parties and to the court system.
At the appellate level, the Court of Appeal for Quebec has introduced mediation as an alternative under the conciliation service program. Participation is on a consent basis, with settlements requiring the Court’s approval. The success rate is in the area of eighty percent. In Ontario, a designated panel of judges at the Court of Appeal have adopted pre-hearing mediation for certain family law cases, for example, where the facts have changed since the lower court decision. In these cases, this has resulted in significant cost saving for the litigants and a reduction of the emotional trauma. On a very limited basis, the Court of Appeal for Ontario has also experimented with mediation in certain civil cases with some success. While some are of the view that mediation at the appellate level cannot succeed because one party has a judgment in hand in its favour, there are many disputes where the issue in litigation is much more narrowly defined than the actual matter in dispute. Therefore, a judicial determination cannot provide a global solution. Appellate mediation is able to address this situation. The success of the Quebec and Ontario initiatives speak for themselves; they are other examples of mediation’s capacity to enhance access to justice on the global scale as well as in individual cases.
Limitations of Mediation
Still, as its detractors point out, mediation is a step added to a civil proceeding and every step along the way drives up the costs of the litigation. There is truth to this assertion in cases where mediation is undertaken for improper strategic purposes, rather than with the intention of entering into good faith bargaining, let alone settlement. Resources that could have been used to move a case closer to trial are wasted if the parties are forced to participate in a mediation where one or both sides has no intention of settling. This works to the obvious disadvantage of poorer litigants. Added steps in the process that are not productive proportionately to the added costs should be avoided.
Some of the criticism of mediation is answered by allowing the parties, as in the Toronto Region of the Superior Court of Justice, to determine the point in the process when they feel mediation is most likely to be successful. The party who is more obviously anxious to settle (typically the plaintiff) must be allowed to deploy his or her resources in a way that levels the playing field and motivates the reluctant party (normally the defendant) to bargain in good faith. Subject to this, one must conclude that although mediation will not be successful in every case, the number of cases in which it is successful greatly outweigh those when it fails, thus justifying its universal imposition. As for those cases where it is not appropriate, as a general rule, there must be adjustments to take those into account. This can be achieved on a case-by-case basis.
Mediation by members of the judiciary poses problems of a unique nature. Judicial mediation first surfaced in the form of pre-trial conferences, although the term “mediation” was not used to describe this process. The usual practice was for the judge to provide a neutral evaluation of the case which the parties would then utilize in settling the case between themselves. Since its inception in the form of pre-trials, judicial mediation has expanded to encompass facilitative mediation beyond mere pre-trials and the term mediation has come to apply to judicial intervention. As this metamorphosis unfolded in the judicial landscape, some judges expressed a level of discomfort in acting in this capacity. These judges, who see their role as solely deciding cases in the courtroom, are by their own admission, less skilled than others in performing the role of mediator.
As judges have become more facilitative in their approach to mediating cases within the court system, other concerns have surfaced. Should judges caucus with the parties separately? How interventionist should judges be? Even though the judge acting as mediator will not decide the case if it goes further, is mediation consistent with the role of the judge as a decision maker? How forceful should judges as mediators be in urging a settlement, given that the office of a judge may create unintended pressures on the parties to accept a solution with which they would not otherwise agree? These are only some of the questions that must be asked and answered. Many judges are still struggling to find the proper balance when performing the role of judicial mediator.
Access to justice, as a fundamental principle of the civil justice system, dictates that problems of cost, delay, judicial economy and proportionality must become more prominent in our approach to delivery of legal services in our free and democratic society. If litigants of modest means cannot afford to seek their remedies in the traditional court system, they will be forced to find other means to obtain relief. Some may simply give up out of frustration. Should this come to pass, the civil justice system as we know it will become irrelevant for the majority of the population. A legal system accessible only to the very poor and the very well to do presages its own demise. Our courts and the legal profession must adapt to the changing needs of the society that we serve. Mediation affords many parties an opportunity to access the civil justice system quickly and at relatively low cost.
The modest purpose of this paper is to inspire discussion, and to serve as a reminder that access to justice poses problems still to be overcome. It is not intended to dictate any categorical solutions, nor present mediation as the definitive solution. Mediation is not a panacea for the ills of the civil justice system, but it is a step along the path. Implemented wisely, evaluated realistically, and measured against pragmatic expectations, it holds the promise of immense dividends for our citizens and for our civil justice system.
I would like to acknowledge the editing assistance of Yan Kiu Chan, law clerk at the Court of Appeal for Ontario.
Published in 2007 Canadian Arbitration and Mediation Journal 16 (1):5-9. Also, available in french as 2007 Accès à la justice — la médiation judiciaire: panacée ou paria? Canadian Arbitration and Mediation Journal 16 (1):9-12.