Welcome back to my series celebrating some proposals from the Civil Rules Review that (i) seem to be good ideas, and (ii) could be rolled out quickly.
Since 2002, mediation has been mandatory for Ontario civil actions under Rule 24.1, but only in three parts of Ontario: Windsor, Ottawa, and Toronto. The Civil Rules Review proposes to expand it provincewide, and this seems like a good idea to me.
Mediation often provides a relatively cheap and quick way to resolve civil disputes justly. In teaching Civil Procedure students about mandatory mediation, I have always struggled to explain the logic of confining it to just three places in the province. No, they aren’t the three largest cities in the province — London and Mississauga are both bigger than my beloved Rose City and Rule 24.1 doesn’t apply there.
It was originally rolled out in Ottawa and Toronto as a pilot project. Windsor — where we’re always ahead of the curve — hopped on the bandwagon. Then 23 years passed and no one got around to expanding it provincewide, or articulating any good reason why it’s not suitable outside of these three centres. (It’s a somewhat depressing example of the power of inertia in civil justice policy.)
The CRR Discussion Paper (at pages 65 to 68) provides a good summary of mediation’s advantages.
Their mandatory medation provincewide rollout idea has several things in its favour:
— Empirical Evidence: mandatory mediation was supported by an extremely thorough empirical evaluation conducted in 2001. If the CRR’s process makes you wonder whether real evicence-based policy-making is possible in Ontario civil justice, take a look at this report. It is possible — or at least it was possible in 2001.
— Support from Affected Parties: the expansion of mandatory mediation province-wide was supported by the Ontario Bar Association after an evidence-based process in which OBA members were surveyed.
— Knowledge from Personal Experience: after 24 years of experience, we know what we’re getting into with mandatory mediation. The people on the CRR Working Group, based on their own practice experience, have knowledge about this process and the likely consequences of this change they propose.
The fact that the CRR drew on these sources of knowledge, in reaching a conclusion about mandatory mediation, is terrific! ⭐️⭐️⭐️
Now, let’s hope the CRR can give itself a bit more time to ensure that its other ideas — e.g. abolishing oral discoveries, and changing the standard of documentary disclosure — receive the same thorough and evidence-based evaluation.
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