Some Reflections On Judicial Mediation: Reality Or Fantasy?

University of Western Ontario, Faculty of Law

Distinguished Speakers Series

March 24, 2010

Chief Justice Warren K. Winkler

There are persons who are not actors, not speakers, but influences. Ralph Waldo Emerson[1]

He was rosy-cheeked and had a constant pleasant smile, but he looked and talked as though he might have been far more comfortable elsewhere than in a board or meeting room. Shirt open at the collar, tie slightly askew, he began every mediation session the same way: “I have called you together so we can resolve your indifferences.”

With that, whatever client I happened to be representing in the moment, would invariably look at me, eyes narrowed, as if to say: What are we doing here?

But immediately the mediator would be underway, and within moments the dishevelled look and the odd, fractured speech no longer mattered. By the session’s end, his elemental fairness, his gentle wisdom, had turned doubt and disdain to respect and awe. And he was master at settling, to the satisfaction of everyone, even the most difficult disputes.

Through a long and satisfying career as a labour lawyer, I sought out this mediator’s service at every opportunity, and the influence he has had on me, as well as the admiration I hold for him, have led me in time to think more and more about the mediator’s function and craft, and the promise it might hold for the civil justice system as a whole. What have I learned? What do I believe?

Mediation is an art, not a science. Though it can be taught, it cannot be entirely learned. Many successful mediators feel that their skill is largely intuitive and personal and individual to them. This may explain why the public perception of the mediator’s role varies based on personal experience. Similarly, the expectation of what the process of mediation ought to bring to a dispute also varies depending on who you ask. Still, there are many shared views on this very timely topic.

In Canada, mediation is no longer a matter of indifference to the public, the Bar and the Bench. To the contrary, mediation, including judicial mediation, is now considered by most to be an essential service that it ought to be embedded at long last within our civil justice system.

For the public, the issue, quite simply, is one of access to justice. A successful mediation can avoid a lengthy, expensive trial. Following this logic, the public expects this service to be provided to them without cost when they engage in litigation. Many are surprised when they have to dip into their own pockets to pay for pre-trial dispute resolution in relation to matters that to them seem to be appropriately within the realm of the courts.

To the Bar, judicial mediation is an important ingredient in solving cases. A judge’s view has, it is often said, “cache” with clients, and in this way can help lawyers settle thorny cases. When judicial mediation is timely, informed and independent, it works.

To the Bench, judicial mediation is a far more controversial subject. Some judges consider that it is inappropriate for them to engage in any form of mediation. They maintain that the judiciary is trained to decide cases, not to broker deals. Mediation, they say, requires them to descend “into an arena,” a place antithetical to judging. In increasing numbers, I believe, other judges feel that judicial mediation is now part of the lifeblood of an ever-evolving system of civil justice; we must have it to keep up with the changing needs and expectations of litigants. According to this view, to best serve the public, mediation must be an integral component of any modern and effective civil justice system.

The Movement Toward Mediation

In my view, mediation generally, as distinct from judicial mediation, is the most significant change to occur within the civil justice system in the past fifty years. And the change is discernible virtually everywhere. The Law Society of Upper Canada, for example, directs lawyers to advise their clients in litigation of the availability of mediation. So too many national and multi-national corporations provide in and through their policy manuals that mediation must precede litigation. At law schools, mediation courses are now a core component of the curriculum, and the schools proudly send teams to national and international mediation moot courts. For practitioners, continuing education courses on advocacy skills for mediation have grown in number and popularity. The weekly Ontario Law Reports invariably reveal page after page of advertisements of lawyers, retired judges, and others all offering mediation services. No one can doubt that the arrival of mediation has made its mark on the litigation culture.

There are many reasons for this dramatic change. They include, of course, the avoidance of the costs and delays inherent in litigation; the uncertainty of the litigation process; and the desire of the parties to have direct involvement in fashioning the solution of their dispute.

So it is then that the issue today is not whether we approve of the increased role of mediation--that role is upon us, like it or not--but whether this cultural shift should extend to court-based mediation, presided over by sitting judges.

Judicial Mediation: A Short History

Although not initially known by that name, judicial mediation within the court system in Ontario has had a longer history than many may believe, extending at least to the early 1960’s with the appointment of Mr. Justice Edson Haines to the High Court of Justice. His appointment was a moment of some considerable consequence. Many in the Bench and Bar reacted negatively, and with more than a little trepidation. Edson Haines had been a high-profile plaintiff’s personal injury counsel, and he had an unforgettably flamboyant style and presence that suggested that he loved to call attention to himself. He was a dashing figure, dressed elegantly, wore his flowing, blond hair in the style of a British barrister, and drove a Rolls-Royce.

But Edson Haines also had substance, and, in a remarkable legal career, argued as counsel of record in several landmark cases and won unprecedented damages awards for his clients. Once on the Bench, he was no less active and influential. Inevitably, at some point during a trial, he would summon counsel to his chambers. With few exceptions, the parties would emerge with a settlement. What transpired behind those hallowed walls was confidential, but we may infer, I think, that what went on in Justice Haines’ chambers was probably a process not unlike what we now call judicial mediation.

A couple of decades later, as a result of changes to the civil rules, judicial pre-trials made their formal introduction to Ontario. They were meant to be neutral evaluations (an opinion expressed by the judge about the case), as opposed to a facilitative mediation (the brokering of a deal). They took place fairly early on in the pre-trial process and were conducted in chambers with counsel, but usually without clients. These pre-trials were usually scheduled, and are still scheduled, to last about 45 minutes, and the parties were expected to provide and rely upon written briefs. At the end of the session the parties generally took the judge’s views away to their clients. It was a process that often resulted in settlement, though many cases remained unresolved within the confines of that pre-trial procedure.

In the late 1990’s, early mandatory mediation came into the civil justice system in parts of Ontario. These mandatory mediations occurred early in the pre-trial process, and were presided over by non-judges who were autonomous of the court and who were paid by the parties. Judicial pre-trials continued to be available to parties who did not settle at the mandatory mediation stage of the process. These reforms yielded much needed information about the utility of the role of mediation in the civil system.

In 2004, as part of a system-wide court reform in Toronto Region and then, more broadly in 2009, in response to recommendations of the Osborne Report, pre-trial dispute resolution underwent further fine-tuning and expansion.

The 2004 Toronto reforms, however, tacked an additional mediation opportunity on to the court system. In addition to requiring private mediation and pre-trial conferences before proceeding to trial, this third level of mediation was offered in cases where it was felt that it would be beneficial, and the trial imminent. The judicial mediators in this scenario were dubbed “designated hitters,” because they were usually conducted by judges hand-picked for the purpose, and with expertise in the subject area of the particular lawsuit. As expected, these designated-hitter mediations proved to be a positive addition to the growing pre-trial dispute resolution options available to litigants.

Today, on more and more occasions, judges across the province are performing ad hoc mediations. This form of judicial mediation is not mandated by the Rules of Civil Procedure, and is available only at the discretion of the RSJ or local administrative judge or team leader. Unlike those pre-trial dispute resolution steps mandated by the Rules, access to willing and able facilitative judicial mediators ebbs and flows, depending on the availability of the appropriate judge and on whether it is felt that mediation ought to be made available in the circumstances.

The Arguments For and Against Judicial Mediation

I referred earlier to the judges who oppose judicial mediation. At the risk of over-generalizing, I would say that these judges tend to be those who are uncomfortable in the informal mediation setting. They are accustomed to and prefer to preside over formal proceedings conducted on the record, in a courtroom, with all parties present, the rules of evidence adhered to, and under the overall aegis of the Rules of Civil Procedure. Anything other or less than this formality risks the dreaded descent into the arena.

For these judges the process is best when lawyers “behave” like lawyers, and judges “behave” like judges. There is predictability then, based on centuries of tradition and precedent. All participants know their respective roles and act accordingly. There is also dignity and decorum attached to the proceeding which an informal mediation setting lacks. In short, everyone is comfortable; everyone is in a familiar role.

Consistent with this view is the concern that the informal mediation may give rise to more than a fair share of complaints against the judiciary and leave judges defenceless in the absence of a record. Finally, it is pointed out that mediation is singularly inappropriate in the appellate setting. One side has already won.

On the other hand, those who support judicial mediation argue that courts must keep up with the needs of litigants. The parties deserve timely, cost-effective, holistic justice which mediation provides. The court system, which is, after all, in the business of dispute resolution, must provide a means by which a lengthy, expensive trial can be avoided through the provision of an early, meaningful investment in a one or two-day mediation.

Further, if the court system fails in its obligation to provide this service to the public, those who can afford it will go outside the system to obtain private mediation while those who cannot afford it will be denied the tools of an accessible, effective and modern justice system. Judges who hold to this view point to “carriage-trade” family law cases, commercial disputes, and large personal injury matters which often opt-out of the courts in favour of private mediation. They forewarn that if the courts are blind to the obvious need and demand for judicial mediation, and refuse to provide it, or provide it only casually and inconsistently, the traditional court system risks becoming less accessible, and less relevant.

Judges who value mediation emphasize that judges are often in the best position to mediate cases because their views are taken seriously by the parties. They bring a special stature to a mediation, the “cache” to which I earlier referred, that private mediators cannot. Why, then, deny the public this value-added aspect of judicial participation in mediation?

As for appellate mediation, proponents note that similarly situated courts are doing mediations effectively in a broad range of cases in Quebec, Nova Scotia, Alberta and elsewhere in Canada. Why not Ontario? Appellate mediation is unlikely to overtake the customary appeal process, but there is no reason it ought not to be available to litigants who seek such services for their particular appeal. The most telling argument in favour of appellate mediation is that disputes often go far beyond the confines of the issues on appeal. Mediation carries the potential to settle an entire dispute, whereas the appeal decision may only resolve a part. And the process is voluntary and non-binding. So, with appellate mediation, there is nothing to be lost and, if the disputes settle, everything is to be gained.

Is Court-Based Judicial Mediation a Reality or a Fantasy?

In its current form, judicial mediation strikes me as both a reality and a fantasy. The plain fact is that judicial mediation already exists in Ontario and in many other jurisdictions in Canada. However, its existence is distinct from its availability. We all know that counsel cannot simply place a phone call to the local trial office and obtain a one or two-day judicial mediation presided over by a knowledgeable judge. Equal access remains illusory.

Even where a judicial mediator is available, our courthouses mostly lack the physical facilities necessary to conduct mediations properly. Mediations are difficult to carry out within traditional court premises. They require a sundry of caucus and meeting rooms, and access to technology. Most courthouses still do not possess the necessary infrastructure.

Moreover, court schedules and scheduling practices do not currently permit the type of flexibility required to deal with mediation time-tabling. Mediations only arise in cases that the parties do not settle. Offering ad hoc, expert, time-consuming mediations into the already intricate scheduling matrix, even if done thoughtfully, would likely add critical delays, and costs, to other parts of the court system. To add to this complexity, mediations frequently go on well beyond normal business hours. This is a practice that falls outside the operational norms of our traditional court system and one that is not easily accommodated.

Most importantly, there are judges who do not want to work in the mediation environment, an environment they regard as far too unfamiliar and informal for them. While the National Judicial Institute, the organization responsible for delivering judicial education all across the country, offers courses in judicial mediation, not all judges are well-suited for this additional role and should not to be dropped, or forced, into such a specialized milieu. In fairness to all involved, the expansion of judicial mediation will only be effective if the judges carrying out the mediations are willing and able to do so.

It should also go without saying that some cases are not amenable to mediation. The guiding premise must always be “mediation where necessary, but not necessarily mediation.” Nor must we ever lose sight of the fundamental mandate of the courts, which is to provide timely trials to those who want them.

Summary

In my view, judicial mediation should be expanded beyond its present form. The judiciary is well situated now to meet this pressing demand within our civil justice system, even despite the views of those within the judiciary who would resist this development. However, to move forward meaningfully, the court system will require some adaptations. The shift will also likely carry operational and infrastructural costs. It will require a thoughtful review of the diversity of skill sets needed on the Bench in the future, and consideration of how best to deploy these skills. Change will not and cannot come immediately. The challenges are real, but they are not insurmountable. If we are serious about meeting this demand, we must plan seriously.

A serious plan will build upon the broad consensus that if mediation is to play a meaningful part in the work of our courts, it must supplement, not diminish, the core purpose of our courts. The central guiding function of the judiciary in our free and democratic-society is to hear and decide cases. That will not change. Mediation must enhance that functioning, must, in other words, enhance the trial process, not supplant it. Nor should every judge serve as a mediator. Though mediation and adjudication are entirely compatible functions, mediation is not and should not be prescribed for every judge.

Here, finally, is my present and core belief: any tenable civil justice system in this still relatively new century will meet the needs of the public only if it provides effective judicial mediation as an integral part of its process. Despite the real hurdles, no part of judicial mediation need remain a fantasy. Continuing integration of judicial mediation into the panoply of services provided by our civil courts will only enhance access to justice.

Also published in The Advocates’ Journal, Winter 2010, 3-5.


1 “The Divinity School Address,” in Essays & Lectures, The Library of America, 1983, p. 90.

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