Professional encroachment, or golden opportunity?

Everyone’s talking about mediation these days. It is heralded as an effective tool in the fight to unclog the courts, and as a cost-effective, people-friendly way of solving disputes. Mediation is well on its way to becoming entrenched as an alternative to the traditional court process, and yet there are no restrictions on who can “practice” mediation. From the point of view of many lawyers, protection of the public and regulation of practitioners are critical concerns. To explore the current status of mediation, BarTalk spoke with Jerry McHale, Director of the Dispute Resolution Office, Ministry of the Attorney General. On the specific issue of regulation of lawyers who practice mediation (Question 6), we also spoke with Richard Margetts, Chair of the Law Society’s Justice Reform Task Force.

1. Tell us about the history of mediation in Canada.

Mediation has a longer history in the US than in Canada. It only began to be used in earnest in the early 80s in BC and Ontario, initially in family law. In the mid 80s, the use of mediation began to spread into civil non-family cases—most vigorously in personal injury cases. The 1988 Ted Hughes Report, the 1996 CBA Systems of Civil Justice Report and the 1998 Metzger Report all articulated a number of the modern problems in the civil justice system and recommended or endorsed mediation as one way to mitigate them.

In the last few years, most jurisdictions have explored mediation. Saskatchewan now has a mandatory program for civil cases, which accounts for about 40 per cent of their cases. Within about four years, Ontario intends to have most civil non-family cases mandatorily mediated. Quebec requires mediation in any family law case before an issue of custody or access can go to the courts. Virtually every province is looking at the role of mediation.

2. What are the benefits of mediation?

It can be a relatively fast and inexpensive process. It is informal, private, and not very complicated. It’s flexible and can be adapted to the needs of the individual case or individual parties. There is lots of research that shows that the parties are comfortable with the process, and would recommend it to other people. Because the parties are more directly involved in the negotiation, rather than having a decision imposed upon them by a third party judge, research shows that the settlements reached are more durable. But, mediation is not a panacea; it is not appropriate for every case. It may not be appropriate, for example, in a family law case where there is a history of violence or an incorrectible power imbalance among the parties. Or cases where precedent is needed, where there are constitutional issues, or when the issues involved should properly be aired in a public forum.

3. Pilot projects are underway in personal injury cases in the Surrey and Robson courts and construction cases in Small Claims court. Where else do you see mediation becoming a preferred or promoted option?

We intend to first evaluate the two initiatives. After consulting with lawyers and others, we may look to extend notice to mediate to general civil non-family cases. We’ll watch for a while in the motor vehicle context. Other jurisdictions like Ontario and Saskatchewan have gone at this more aggressively and are more comfortable mandating mediation in more cases. We’ll watch what happens in those jurisdictions as well. We may also be working with the provincial court to expand the use of mediation for Family Relations Act cases. We’re already using it in child protection cases, and have an established roster of child protection mediators. Mediation also has great potential in the administrative law context and in government.

4. Who is doing mediation?

No single profession “owns” mediation right now, and there is no question that there is and will continue to be competition for mediation business. I see lawyers, psychologists, architects, teachers, non-professionals—anyone can call themselves a mediator. In civil non-family cases, the majority are being done by lawyer mediators, but definitely not all. In family cases, where property and maintenance are involved, lawyers are usually involved. Where it is a case of custody and access only, psychologists and counsellors are well represented.

5. Who is protecting the public?

The issue of public protection is one that we have been thinking about. If the mediator is a member of a professional body, any complaint is directed to their disciplinary body. Beyond that, there is no place to complain to. That is one of the definite marketing advantages that lawyers have in this field—it enhances the security that people feel in choosing a lawyer as a mediator. Right now we are developing a provincial roster of mediators, based on consultation with the lawyer community, mediation community and the public. We envision a Vancouver-based databank with names and background information on training and experience. Someone can say “I have this particular case, we need someone with this kind of background/training”, and we can give them some names to choose from.

6. What is the Law Society doing about mediation? (to Richard Margetts)

The Law Society Justice Reform Task Force has recommended that the Benchers review its approach to the issue of regulation and certification of mediators. Many members of the committee believe that lawyers are already engaged in many areas of dispute resolution. These members of the profession are well-positioned to compete in the marketplace to provide mediation and arbitration services. I believe that there is a public and professional benefit to ensuring that Law Society members are able to compete in the open marketplace with all of the advantages that a certification or an accreditation program provides other non-legal practitioners in alternate dispute resolution. Lawyers bring a wealth of experience and very high professional standards to this emerging area of practice. (Richard Margetts)

7. What would you recommend to lawyers who are interested in doing mediation?

BC has had some of the best mediation training in Canada for some time, primarily through CLE and the Justice Institute. Many lawyers already incorporate mediation skills into their practice, as clients begin to demand more collaborative problem-solving approaches as opposed to the traditional adversarial style of practice. Lawyers in any area of practice would be well-served to expand their skills and learn more about this.

8. Any last words?

Remember that this is happening in a context—in virtually every province there have been reviews of the civil justice system, looking at how to address the problems of cost, delays, and complexity. There is now enough research out there to show that mediation and alternate dispute resolution mechanisms work. Although they may appear relatively new and somewhat innovative when they are first introduced, these are not untested concepts.

If you want to comment on Mediation in BC, we want to hear your opinions. How is this issue affecting you? What issues are missing? What does the CBA need to do in response? What can individual lawyers do?

This article was published in the October 1998 issue of BarTalk. © 1998 The Canadian Bar Association. All rights reserved.