Mediation is a process in which a third party neutral intervenes in a dispute to assist the parties in reaching a mutually acceptable resolution. At its purest, mediation is a voluntary,private and informal process. 1 However, as a modern practice of mediation has developed in North America, lawmakers have taken notice of this alternative method of resolving disputes, and have incorporated mediation into traditional litigation procedure. 2 In fact, mediation has become a precondition to a formal hearing in some traditional legal systems, such as the respective mandatory mediation programs instituted in California, United States and Ontario, Canada.
Some scholars suggest that mediation’s core principles and values are threatened by the increasing integration of mediation into the litigation system. 3 Others focus their criticisms on the way in which these court-connected mediation programs are structured, arguing that court connected mediation procedure should not promote mediation solely as a tool for settlement, with forbearance to other important considerations, like access to justice, open court proceedings, effective assertion of rights, consistent outcomes, and the rule of law. 4
Despite criticism, court-connected mediation programs are increasing and expanding and, as such, they are increasingly defining the relationship between mediation and litigation. 5 This paper examines the evolution of two mandatory mediation programs in the state of California and the province of Ontario, how they differ, and the lessons we can take from each program’s successes and failures.
Both California and Ontario have “embraced mediation” with a view to reducing the backlog of court cases on their dockets, 6 and provide a “speedier, more streamlined and more efficient” civil justice system. 7 In effect, lawmakers have embraced mediation, not as an alternative process for dispute resolution, but a cure for a traditional system that is sick and suffering. Notwithstanding their shared goals, California and Ontario’s respective mandatory mediation programs evidence divergent interpretations of how to best administer the mediation medicine to their litigation systems. California has implemented mandatory mediation in family cases, specifically cases where child custody and visitation are in issue. By contrast, Ontario has implemented mandatory mediation in most civil disputes (in three of its largest cities for now) 8, but has explicitly carved out an exception for family cases.
What is Mandatory Mediation?
Not all court-connected mediations arise out of mandatory mediation programs. In fact, both California and Ontario have promoted voluntary mediation services in their courts, in addition to their mandatory mediation programs. 9 Mandatory mediation is the process in which parties are required, by procedural rule, to attend mediation as a precondition to having their case heard in court. 10
Mandatory Mediation in California
In 1981, California enacted mandatory mediation legislation in child custody and visitation proceedings. 11 The program’s stated mandate was to reduce parental acrimony, encourage the paramountcy of child-focussed resolutions, and promote principles of maximum parental contact. 12 Over the decades since the legislation was first introduced, amending provisions were enacted to address various criticisms about the potential harm the mandatory mediation process has on victims of domestic abuse. 13 Notwithstanding the changes, mandatory mediation of custody and visitation cases remains the law in California, even where there is a history or allegation of domestic violence.
The law provides for early intervention, requiring that the mediation be set “not later than 60 days after filing” the petition. 14 Where there is a history of domestic violence between the parties, at the abused parties’ request, the mediation is held at separate times by single party sessions. 15 Notwithstanding the forgoing protection for victims, the mediator is granted broad authority, at his/her sole discretion, to exclude counsel and/or a domestic violence support person from participation in the mediation proceedings. 16
Mandatory Mediaton in Ontario
In 1994, the Ontario Court of Justice (General Division) and the Ministry of the Attorney General established a collaborative initiative to respond to public complaints about the lack of access to justice in the current civil justice system. 17 This led to the implementation of Ontario’s mandatory mediation program, which was initially introduced as a pilot project in January, 1999. 18 The project was governed by two temporary rules of civil procedure, Rules 24.1 and 75.1 of the Ontario Rules of Civil Procedure, 19 which mandated early mediation for all non-family civil case-managed cases (Rule 24.1), and contested estates, trusts and substitute decisions matters (Rule 75.1) , filed in the Ontario Superior Court of Justice in Toronto and Ottawa. 20 Rules 24.1 and 75.1 are now permanent procedural rules, which have been expanded to include Windsor (Essex County), in addition to Toronto and Ottawa. 21 The objectives of the program were and are economic, namely “to provide a speedier, more streamlined and more efficient structure which will maximize the utilization of public resources allocated to civil justice.” 22 In other words, mandatory mediation in Ontario solely seeks to reduce litigation cost and delay.
Mandatory Mediation: “Necessity is the Mother of Invention” - Plato
As one scholar describes the relationship between mediation and traditional litigation, mediation like an unwelcome, but invited, guest at the banquet table. 23 By definition, mandatory mediation is “oxymoronic,” in that it is contradictory to force parties to mediate. 24 However, mandatory mediation also addresses parties’ needs and incorporates a natural step for addressing disputes into the traditional litigation process. Before parties litigate, it is prudent to attempt to find a resolution. Jerry McHale, Assistant Deputy Minister for the Canadian National ADR Section explains,
When clients go to a lawyer with a problem, they want the problem solved, not litigated. Lawyers tend to think in terms of treating cases as if they’re going to trial, even though they know chances are the cases will settle before trial. So mandatory mediation encourages lawyers to treat disputes in more problem-solving ways. 25
In addition, mandatory mediation programs don’t force parties to resolution, but rather require that they come to the table and pursue the option. 26 Any resolution that may be reached is (arguably) voluntary. 27 Furthermore, there is equal criticism of court connected mediation programs that are voluntary as underutilized in many American jurisdictions. 28
Mandatory Mediation in Ontario: A Bandaid Solution?
Evidence in favor of the mandatory mediation program in Ontario is primarily based on settlements achieved as a result of the mediation sessions. However, Ontario’s mandatory mediation program yields low settlement rates. 29 Within the first year of the implementation of Ontario’s mandatory mediation program, there was a net gain of only 15% more settlements. 30 Notwithstanding, some lawyers argue the cost is not worth such small benefit. For example, in some cases, mandatory mediation may actually delay settlement. 31 Studies show that the rate of pre-mediation settlements dropped when mandatory mediation was introduced. 32 Martin Teplitsky, a highly respected Toronto litigator and mediator, hypothesizes that “lawyers stop settling cases once a third party is available,” and some lawyers believe it’s “imprudent to make concessions before mediation,” leaving them with less bargaining room later on if the matter does not settle through pre-mediation negotiations. 33 In addition, since mandatory mediation in Ontario has only resulted in 15% of cases settling more quickly as a result of the program, that means that 85% of cases incur an additional unnecessary cost in the litigation (estimated at $3,000-$5,000 per party). 34 Moreover, since an estimated 95% of cases will settle prior to trial anyway (with or without mediation), it is mainly the speed of settlement, not the fact of settlement, that is effected. 35
Mandatory Mediation in California: Poison or Cure?
Ontario’s mandatory mediation program specifically excludes family law cases from application due to traditional concerns about family dynamics and possible power imbalances that can create unfair advantage of one party over the other. 36 The California program has been the subject of severe criticism largely because of these same concerns, specifically as they apply to victims of domestic violence. Some critics argue that “mediation has the potential to actively harm women,” both by exposing victims of domestic violence to further abuse and by imposing a process in which women may be inherently disadvantaged because of societal prejudices and sociological gender tendencies. 37 Further, the dynamic and promise of self-determination in mediation is altered by its mandatory imposition:
When mandatory mediation is part of the court system, the notion that parties are actually making their own decisions is purely illusory. First, the parties have not chosen or timed the process according to their ability to handle it. Second, they are not allowed to decide themselves how much their lawyers should participate, but instead are deprived whatever protection their lawyers have to offer. Finally, they are not permitted to choose the mediator, and they often cannot leave without endangering their legal position even if they believe the mediator is biased against them. 38
Notwithstanding the criticisms, studies indicate that, mediation is the better alternative, in terms of its rates of settlement. In California, approximately 20-30 percent of separating families seek resolution of child custody issues through the court system, and are accordingly mandated to mediation. 39 Half of these disputes (10-15 per cent of the total separating population) are fully resolved, and two thirds (13-20 per cent of the total separating population) are partially resolved, through mediation. 40 In addition, studies show that parents who participated in mediation reached a resolution in half the time and cost than parents who did not participate in mediation. 41
Mediated settlements in custody and visitation disputes also appear to produce better results from sociological and psychological perspectives. 42 Litigation drives parents toward adversarial positions and threatens the “emotional, economic, and educational health” of children, families and communities, whereas mediators “stimulate parents’ consideration of their own interests, and seek to find common ground and compromise that will result in creative solutions to impasses.” 43 In most cases, mediation reportedly meets the needs of parents better than traditional court procedure. Studies indicate that 77% of mediating couples reported satisfaction with the mediation process, as compared to only 40% of litigating couples with court procedure. 44 In particular, mediating parties reported “liking the focus on the children, the chance to air grievances, the opportunity to discuss real issues, and having the discussion kept on track.” 45 Mediated resolutions also tend to promote principles of maximum parental contact, 46 respect and compliance for law and legal process, 47 and fairness. 48
Although Ontario’s mandatory mediation program purports to play it safe by imposing mediation in only non-family cases, thus avoiding perceived issues with power imbalance and prejudice in family dynamics, the program is less effective, in terms of settlement rates, than California’s mandatory mediation program for child and custody disputes. In addition, Ontario’s program is economically-driven, but does not prove to meet program goals of reducing cost. To the contrary, the Ontario program may add cost in an already procedurally onerous litigation system.
By Contrast, California’s program takes more risks, but reaps considerably more rewards. As discussed, the risks are largely associated with risks of harm to women and victims of domestic abuse. Notwithstanding, the litigation alternative is equally, if not more, risky to these individuals. The adversarial system encourages aggressive positioning and provides abusers with a procedural framework to continue abusing their victims. In fact, litigation abuse is common in domestic violence situations. If California reformed its program to reduce the risks to vulnerable parties, the mandatory mediation program can accomplish what it has set out to achieve. Positive changes may include providing an “opt out” option for victims of domestic abuse, pre-mediation education programs for victims, permitting counsel and support persons to be present at the mediation (at the victim’s sole discretion, as opposed to the mediator’s sole discretion), and providing procedural and principled safety protocols for the mediation process itself. 49
Despite criticism as to the effectiveness of the Ontario programs, Ontario shows no signs of removing mandatory mediation from the civil rules. Similarly, despite benefits achieved by the California program, it is unlikely Ontario will follow suit for now. The Honourable Justice Warren Winkler recently proposed reform that would impose a mandatory mediation program in family cases in Ontario, similar to the California system, noting that mediation is “user-friendly, and it’s cost-efficient and it gets things done more quickly,” but the Ontario government responded that “there is simply no money in the government coffers” to get the job done. 50 Unfortunately, Ontario’s focus continues to be misplaced, perceiving mandatory mediation solely through an economic lens.
1 DWIGHT GOLANN & JAY FOLBERG, MEDIATION: THE ROLES OF ADVOCATE AND NEURAL, 89 (Aspen Publishers, 2nd ed. 2011).
2 See for example the ADR Act of 1998, 28 U.S.C. s.651(b).
3 Ellen E. Deason, Procedural Rules for Complementary Systems of Litigation and Mediation - Worldwide, 80 Notre Dame L. Rev. 553, 553 (2004-2005).
4 Id at 555.
5 Id .
6 GOLANN & FOLBERG, supra note 1, at 337.
7 Colleen M. Hanycz, Special Issue: Civil Justice and Civil Justice Reform - Through the Looking Glass: Mediator Conceptions of Philosophy, Process and Power, 42 Alta. L. Rev. 819-885, para.12 (2005).
8 Ontario’s mandatory mediation program currently applies only in Toronto, Ottawa, and Essex County.
9 For example, some mediation programs in California provide parties in small claims court proceedings the opportunity mediation services at no cost. In Ontario, subsidized mediation services are available to residents of the city of Toronto going through a separation, through the 393 Mediate program. See program description for 393 Mediate, available at http://mediate393.ca.
10 Nancy Welsh, Making Deals in Court-Connected Mediation: What’s Justice Got to Do With It?, 79 Wash U Law Rev. 787, 797 (2001).
11 Lauri Boxer-Macomber, Revisiting the Impact of California’s Mandatory Custody Mediation Program on Victims of Domestic Violence Through a Feminist Positionality Lens, 15 St. Thomas L. Rev. 883 (Summer, 2003); See also CAL. FAM. CODE ss.3120(a).
12 Boxer-Macomber, Id.
13 See Boxer-Macomber, Id: Some criticisms include that mediation places victims of domestic violence at risk of continued abuse; that court-ordered mediation sessions physically endanger victims; and, that mediation, more often than litigation, results in custody and visitation arrangements that give offenders frequent access to their victims.
14 CAL. FAM. CODE, supra note 11, s.3175.
15 CAL. FAM. CODE, supra note 11, s.3181.
16 CAL FAM. CODE, supra note 11, s. 3182.
17 Hanycz, supra note 7, at para.12.
18 Id, at para.14.
19 Ontario Rules of Civil Procedure, O. Reg. 438/08, r. 24.1 and 75.1.
20 Hanycz, supra note 7, at para.14; See also Public Information Notice: Ontario Mandatory Mediation, available at http://www.attorneygeneral.jus.gov.on.ca/english/courts/manmed/notice.asp.
21 Hanycz, Id, at para.1.
22 Id, at para12.
23 Id,at para.16.
24 Mucalov, supra note 22.
32 Id. In the 2001 Evaluation of the Ontario Mandatory Mediation Program for the Attorney General, the rate of settlement in Toronto dropped from 21.4% in the first three months of the program to 0.3% in the last three months of 2000 (one year after the program was introduced).
37 Trina Grillo, The Mediation Alternative: Process Dangers for Women, 100 Yale L.J. 1545 (April, 1991). For example, studies indicate that women are more “relational” than men. It has been hypothesized that the party with a more relational sense of self may be disadvantaged in mediation because they defined themselves in terms of their connections to others. In addition, mediation is a future-focussed process, which may (subtly and not-so-subtly) sanction expressions of anger or personal fears.
39 Rebecca Love Kourlis, Melinda Taylor, Andrew Schepard, Marsha Kline Pruett, IAALS’Honoring Families Initiative: Courts and Communities Helping Families in Transition Arising from Separation or Divorce, 51 Fam. Ct. Rev. 351 (July, 2013)
41 Erin Bajackson, The Best Interests of the Child - A Legislative Journey Still in Motion, 25, J. Am. Acad. Matrim. Law. 311 (2013)
42 Note: This is arguably not the case for battered women.
43 Kourlis, Taylor, Schepard & Pruett, supra note 39.
46 Id. Studies indicate that non-residential parents were more likely to see their children on a weekly basis and be more involved in their children’s lives after mediating their dispute, than non-residential parents who litigated their dispute.
47 Id. Studies indicate that mediation increases compliance with visitation and child support orders.
49 Boxer-Macomber, supra note 11.
50 Cristin Schmitz, Top judge proposes free court-based mediation, AG says “no money”, (Lawyers Weekly, October 8, 2010 issue), available at http://www.lawyersweekly.ca/index.php?section=article&articleid=1264.