Mandatory Mediation in Civil Cases: Purposes and Consequences

Abstract

This paper reports findings from the evaluation of a two-year mandatory mediation pilot project for civil cases in Toronto and Ottawa, Canada, in 1999 and 2000. It is based on data from 3,000 completed mediations, supplemented by sample questionnaire responses from mediators, lawyers and litigants.

The pilot project sought to reduce litigation cost and delay. It included a number of controversial aspects: early mediation (before examinations for discovery); mandatory mediation (every defended case has a mediator assigned [or selected by the parties] within 30 days of the first defence); and private mediation (mediators are paid by the parties, and selected from a roster of private mediators). It was designed to fit into Ontario's case management model; that model was one of the inspirations for Lord Woolf's reforms of English civil procedure. The evaluation reported reductions in delays and costs across nine major types of civil cases. Reductions in time to disposition were measured through the effective use of a control group in Toronto. Cost savings were cited by lawyers and litigants both in focus groups and in individual case questionnaires.

What was less emphasized in the formal evaluation and needs systematic examination are the effects of mediation on law practice, and conversely the effects of law practice on mediation. For example, while critics of mediation often see it as the privatization of justice, the Ontario program actually involved earlier and more active intervention by the courts administrative apparatus in what had formerly been the most private phase of the litigation process. At the same time, a program that encouraged non-lawyer mediators came to be dominated by lawyer-mediators; mediations became increasingly concentrated among a relatively small number of the hundreds of mediators on the official roster; and a program in which women played major leadership roles saw male mediators dominate the practice.