In this additional step in the civil litigation process in Ontario, the mediator is assigned a primarily "facilitative" role. This paper advances the position that mandatory mediation in Ontario was not designed as a process where a third party would offer an evaluation of the legal merits of a dispute. Instead, the goals of mandatory mediation are best achieved, and the parties know what to expect, when a mediator takes on the role of a neutral third party who facilitates communication, and takes an interest-based approach to problem-solving. This paper further posits that the mandatory mediation process, which requires the attendance of clients as well as counsel,3 presents a challenge for counsel who are used to the traditional adversarial structure. In particular, as a result of increased client participation, the lawyer may not have the same degree of control over the civil litigation process as in the traditional adversarial system. Several results from a recent study of lawyers' reactions to mandatory mediation in Ontario are suggestive of an emerging trend among lawyers to attempt to re-shape the interest-based mandatory mediation process into a more familiar adversarial process by encouraging the adoption of a more evaluative style of mediation. This response may be more comfortable for, and possibly beneficial to, members of the Bar, but it is not necessarily the approach that best achieves the goals of the mandatory mediation process in Ontario, or the needs of clients. In Ontario, our experience with mandatory mediation is, as yet, relatively new. As our experience matures, it may become apparent that certain types of disputes may require, or certain clients desire, a more evaluative procedure. However, these evaluative services should be clearly labelled as distinct from, and remain independent of, the mandatory mediation process.
Carole J. Brown,
Facillitative Mediation: The Classic Approach Retains Its Appeal,
4 Pepp. Disp. Resol. L.J.
Available at: http://digitalcommons.pepperdine.edu/drlj/vol4/iss2/9