Should Judges Mediate?*

On March 24, 2010 Warren K. Winkler, the Chief Justice of the Superior Court of Ontario, delivered a speech to the
Faculty of Law, University of Western Ontario, as part of its Distinguished Speakers Series, titled Some Reflections
On Judicial Mediation: Reality Or Fantasy?. I have reproduced the text of his speech here.  

Acknowledging that mediation is now a key component of our civil justice system, Justice Winkler asserted that judicial mediation (mediation offered by judges through the court system) needs to become an entrenched part of our civil justice system if our courts are to remain relevant and the principle means through which ordinary citizens gain access to justice.  While affirming the benefits of private mediation as part of our justice system, Justice Winkler argued that our courts must also provide opportunities for mediation since litigants now view mediation as an integral part of our justice system.  Justice Winkler added that judicial mediation is already being offered on a discretionary ad hoc basis in Ontario in selected cases where neither a mandatory mediation nor a judicial pre-trial has resulted in a resolution, and further mediation might be beneficial and trial is imminent in a particular case.

Justice Winkler’s speech has piqued interest in the concept of judicial mediation.

The Ontario Bar Association (OBA) has been actively studying judicial mediation since 2011. On December 9, 2011 it
organized a one-day public forum titled "Judicial Mediation Policy Day".  The OBA invited high-profile speakers from across the country - judges, tribunal chairs, clients and mediators - to discuss issues relating to judicial mediation. 

The OBA continues to study the issue, having struck the OBA Task Force on Judicial Mediation comprised of representatives from various OBA member sections.  It is believed that the Task Force will soon publish its position on judicial mediation. In advance of that, OBA sections are soliciting the views of its members on the subject.  For example, the ADR Section of the OBA presented a submission to the Task Force and has invited its members to comment on it.  

The concept of judicial mediation is not new.  The Law Society of England and Wales has mandated the use of judicial mediation to address employment disputes heard by the United Kingdom’s Employment Tribunal since October 2011.   The provinces of Alberta, British Columbia, Nova Scotia and Quebec utilize the judiciary to varying degrees to settle civil disputes through mediation.  In Australia, judicial mediation has been introduced with mixed
reviews.  In an article published in the Australian Lawyers Weekly on December 11, 2012, the authors debate both sides of the issue.  

Is there a need for judicial mediation here in Ontario?  Judicial mediation has seen its greatest use in jurisdictions without court-annexed mandatory mediation.  We have one of the most well-developed and successful court-annexed mandatory mediation systems in the world.  Since 1999, all civil cases started in Toronto, Ottawa and Windsor go through mandatory mediation.   There has not been a formal review of the Ontario Mandatory Mediation Program (OMMP) since 2001 but, anecdotally, early settlement rates achieved through mandatory mediation are estimated to be as high as 80%.  A further sign of the success of the OMMP is the interest shown by other jurisdictions in using the program as a template for the creation of their own programs.  Trinidad & Tobago, Bahamas and Bermuda are just three examples of countries that have created mandatory mediation programs modeled after the OMMP. Closer to home, British Columbia has moved away from a judicially controlled and delivered mediation program to a private sector model similar to Ontario’s.  

Not all cases settle at early mediation and perhaps this is where judicial mediation can assist in offering added-value to the courts.  There is already an established pre-trial system in place in Ontario and, as stated by Justice Winkler, judicial mediation is also being used informally to address appropriate cases poised for trial. Perhaps further refinements can be made to the pre-trial process to enhance its value as a settlement tool and a new process can be formalized that would introduce judicial mediation for difficult cases that are headed for trial.   

However, any formal introduction of judicial mediation should be done with caution.   The authors of the above referenced December 11, 2012 Lawyers Weekly article conclude that judges should stick to judging because that is what they are trained to do and what civil society expects them to do.  In making that point the authors quote Australian academic David Spencer, who says: “Judicial mediation is a contradiction in terms. Judges are supposed to judge (not mediate), to apply law (not interests), to evaluate (not facilitate), to order (not accommodate), and to decide (not settle).”

Mediation offers a unique opportunity for the parties in a dispute – to engage in a negotiation that they shape and to achieve a resolution that they own. I would be concerned with any new process that changes this perception or undermines this opportunity.  
 
It will be interesting to see how this issue unfolds over the next several months in Ontario.  
   


 
* The views expressed in this article are solely those of the author.  In expressing these views, the author does not represent the views of the Ontario Bar Association or any other organization.