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Early mediation – resolving disputes in (and after) the age of COVID-19


COVID-19 is forcing litigators to modernize our practices. We have embraced technological tools that many of us have long resisted (or have never had to consider using). It is time to embrace early mediation too.

The courts have been suspended, matters have been adjourned with no indication of when they will be rescheduled, and one can only imagine how long the backlog will be once the suspension is lifted. Even before the pandemic, our judicial system was so plagued with delay that it took years for clients to get their day in court. Those delays will be even longer once the province reopens for business.

Resolving our clients’ legal disputes will only become more difficult unless the legal community – and litigators in particular – make some drastic changes to its practices.

Embracing technology is a step in the right direction. Even those courts that just weeks ago relied on fax machines are experimenting with new tools. Motions and pleadings can be filed electronically. Hearings are being held in writing, by teleconference and by videoconference. Lawyers are no longer required to gown (gasp!). These changes are monumental (and they also leave some of us asking, why couldn’t we do that before?). When it comes to technological advances, the wheels of justice have turned slowly, and yet the courts are moving as swiftly as they can to continue to provide access to justice during this crisis. It is commendable. Hopefully, many of these emergency measures will become standard practice. The efficiencies to be gained are enormous.

But the efficiencies of technology alone will only take us so far in our attempts to provide continued service to our clients during (and after) these challenging times. The important question we need to ask ourselves is this: How can we keep our clients’ disputes out of the overburdened judicial system?

The courts are apparently asking themselves the same question because, this week, the Ontario Superior Court gave us the answer: mediation.

In its latest Notice to the Profession, the Court “calls upon the cooperation of counsel and parties to engage in every effort to resolve matters. For civil proceedings, this includes attendance at mediation – whether prescribed or not – where a mediator is willing to engage in a virtual mediation.”

The courts are telling litigators to embrace mediation, whether or not they are in a jurisdiction with mandatory mediation requirements, and whether or not they are at a stage in their litigation when mediation would typically occur.

Early mediation – that is, mediation that takes place in the early stages of a legal dispute, often before litigation begins – is an attractive alternative to the overly-burdened (and currently partially suspended) judicial system.

In early mediation, the parties agree on a neutral who will attempt to resolve their dispute without the need for litigation. Because there are no rules of procedure applicable to mediation, the process can be tailored to suit the needs of the parties and the dispute. Depending on the complexity of the issues and the money or rights at stake, the parties may agree on some form of disclosure and/or discovery before attending mediation. Parties may even provide written submissions to the mediator. Unlike litigation, early mediation can take place as soon as the parties and the mediator are available. And everything shared in mediation is confidential – it cannot be used in subsequent litigation if the matter is not resolved. Compared with the expenses and delays of the traditional litigation model, early mediation is exactly what we need right now, as access to justice seems like a far-off dream for our clients.

And with the help of videoconference apps (and the appropriate security settings), parties can engage in early mediation from the comfort of their homes. File sharing and screen-sharing make it possible for parties and the mediator to see and share relevant documents. Some apps even allow the mediator to place parties and counsel into separate break-out rooms, where each side can engage directly and confidentially with the mediator and their counsel.

The post COVID-19 world is going to look very different from the one we knew a matter of months ago.

Eventually we will have to put our robes back on, but some of these new technologies will be permanent fixtures in our court system and in our practices. Early mediation should be, too.