Toronto Star

Feb. 3, 12:06 EDT

Mediation trend called `a concern'

Attorney-General shifts view on keeping cases out of court

Tracey Tyler
The Toronto Star

After spending years and untold millions trying to keep cases out of court, it may be time for the mediation trend to end, Attorney-General Jim Flaherty says.

Resolving civil disputes through mediation may save money, but removing lawsuits from the justice system can be too costly in other ways, Flaherty told hundreds of lawyers in Toronto Thursday.

Flaherty's speech signals a major shift in thinking in his ministry and bucks a dominant legal trend of the past decade, when mediation became something of a buzzword.

Exactly four years ago, his predecessor as attorney-general, Charles Harnick, made mediation a mandatory first step for many civil lawsuits filed in the province, hailing it as ``a turning point in the history of Ontario's justice system.''

But with mediation comes a danger that settling legal conflicts behind closed doors will become `'the dominant way of doing business'' and courts will be stifled in their traditional role of developing the law, Flaherty said.

``I wonder how far we want to go with this trend,'' he told lawyers gathered for the annual conference of the Canadian Bar Association's Ontario branch.

Having courts lose the ability to reshape law ``is a real concern we have on the civil side,'' he said in a keynote address. ``We should wonder and be concerned where current trends are taking us.''

Throughout the 1990s, mediation grew into a major cottage industry in North America, expanding employment options for lawyers and retired judges who act as mediators.

In Ontario, several mediation chambers have been set up as private businesses. Litigants pay for the mediators themselves, but the province administers mandatory mediation programs in Toronto and Ottawa.

Yesterday, however, Flaherty said there's a connection between keeping cases in court and ensuring the justice system stays open and accountable to the public, one of his recurring themes.

At a ceremony to mark the opening of the courts last month, he suggested that another way to ensure accountability would be to introduce performance standards for the courts.

Speaking to reporters after his speech, Flaherty offered assurances that mediation still has a place.

``I believe in mediation. It works,'' he said. ``It gives people a chance to speak directly about how they feel about whatever the issue is in litigation. That's important.

`My concern is too much of the work is going outside of the publicly funded system, that our publicly funded justice system will not have its traditional impact of developing the law.'
- Attorney-General Jim Flaherty

``My concern is too much of the work is going outside of the publicly funded system,'' he said. ``That our publicly funded justice system will not have its traditional impact of developing the law, providing that public service on the civil side. That does worry me.''

But after he left, at a conference event focusing on mediation, many seemed amazed by his comments.

``There's hardly a lack of files in the court system,'' said Toronto mediator Gary Furlong. In fact, the latest Ontario Superior Court statistics show an increase in the number of civil cases filed in the province - 84,399 last year, up from 77,569 in 1999.

By contrast, about 3,300 cases have been resolved through mandatory mediation programs.

Flaherty's call for a reassessment of mediation comes as the natural resources ministry is advertising for mediators, Furlong added.

Tom Marshall, president of the Canadian Bar Association-Ontario, said he doesn't know if it's time to ``put the brakes'' on mediation, but he does agree public perceptions of the justice system are influenced by the ability to have independent judges hear cases.

On the other hand, a big reason mediation works is that both sides in a lawsuit work out the solution themselves, rather than have it ``foisted upon them,'' Marshall said.

``The real danger, I think, is that the mediation process comes to replace the judicial process,'' he said.

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