Nicholas McFarlane
March 20, 2023
In this blog post, I will propose that a fee increase should be implemented for roster mediators under the Ontario Mandatory Mediation Program (OMMP). By following this proposal, more mediators could potentially join the OMMP roster. Ultimately, I hope this post is beneficial for law students, lawyers, academics, and policy makers who are interested in Ontario mandatory mediation.
Within the first few years of the OMMP’s implementation, there were as many as 480 mediators on the roster and today there are approximately 160.[1] According to the Alternative Dispute Resolution Institute of Ontario (ADRIO), one of the reasons why the number of roster mediators has been declining is inadequate compensation for roster mediator services.[2] Specifically, roster mediator compensation is inadequate because it is below market value relative to private mediations.[3] Currently, roster mediators can charge a maximum of $600 for a two-party, three-hour mediation.[4] In contrast, a typical private practice mediation can yield $3,000-$6,000 in mediator fees.[5] Based on these figures, if the gap between roster and private mediation rates is reduced, more mediators may join the OMMP roster. In turn, this can increase the roster’s capacity to engage in more mandatory mediations, which can be especially useful if the OMMP further expands across the province. With regards to proposed higher roster rates, it should be noted that despite a moderate increase in mediator fees, the overall cost savings of mandatory mediation would still create an economic benefit for mediation parties.[6] To this end, it is reported that mandatory mediation in Ontario saves parties an average of $5,000-$10,000 in litigation costs.[7]
To improve the roster fee structure, a potential solution is for the Ontario government to subsidize increased roster rates. Subsidizing mandatory mediation is not a novel idea and is employed in various countries like Italy, Romania, and Bulgaria.[8] In Italy, mediation parties receive a tax credit of €250 for simply participating in mandatory mediation.[9] In Romania and Bulgaria, parties get a partial or full refund of their court filing fees if the mediation leads to settlement.[10] In Ontario, filing fees for a Statement of Claim and Defense are $243 each.[11] Therefore, if a subsidy was granted for those fees, the parties would collectively save about $500 which could go towards higher roster fees.[12] In effect, a two-party, three-hour mediation could nearly double in price to $1,100.[13] In order to implement policies of this kind, the provincial government must first establish their budget to subsidize mandatory mediation. Additionally, the government must consider if they want to provide a subsidy for good faith participation in mediation or only in the event of settlement. The former approach, as adopted in Italy, may likely result in more parties getting the subsidy, but there may be challenges in assessing whether good faith participation has been achieved on a case-by-case basis. In contrast, the latter approach, as adopted in Romania and Bulgaria, would likely result in less parties receiving the subsidy, but it would also directly encourage the goal of resolving disputes. However, it should be noted that this approach would fail to reward participants who did not settle, but ultimately narrowed their issues of dispute, which could help expedite the trial process.
With these considerations in mind, it is hoped that the provincial government gives these issues serious attention in order to adopt a roster fee subsidy that helps Ontario litigants, while satisfying budgetary constraints.
For more information related to this post, please visit the following sources:
· Ontario Mandatory Mediation Roster Rates
· Ontario Mandatory Mediation Cost Savings in the Hann Report-
· Mandatory Mediation Subsidy in Italy
· Mandatory Mediation Subsidy in Romania and Bulgaria
[1] Bruce Ally, “Is the Mandatory Mediation Program in Ontario Still Viable?” (17 January 2022), online: Mediate.com <https://mediate.com/is-the-mandatory-mediation-program-in-ontario-still-viable/>; Government of Ontario, “Mandatory Mediation Rosters” (3 March 2023), online: Government of Ontario <https://www.ontario.ca/page/mandatory-mediation-rosters>.
[2] ADR Institute of Ontario, “Mandatory Mediation- The View of the ADRIO” (Ontario: ADR Institute of Ontario, 2020) 1 at 5.
[3] Ibid.
[4] Administration of Justice Act, RSO 1990, c A6, Reg 43/05, s 4.
[5] Rick Weiler, “Who Pays the Mediator for an Ontario MVA Mandatory Mediation?” (6 December 2018), online: Kluwer Mediation Blog <https://mediationblog.kluwerarbitration.com/2018/12/06/who-pays-the-mediator-for-an-ontario-mva-mandatory-mediation/>.
[6] Robert G. Hann, et al., “Evaluation of the Ontario Mandatory Mediation Program (Rule 24.1) Final Report: The First 23 Months” (Ontario: Robert Hann and Associates Limited, 2001) 1 at 10.
[7] Ibid.
[8] Weinstein International Foundation, “Mediation Developments in Italy” (2020), online: Weinstein International Foundation [Weinstein]; Jacqueline M. Nolan-Haley, “Is Europe Headed Down the Primrose Path with Mandatory Mediation” (North Carolina: NCJ Intl L & Com Reg, 2012), 982 at 1005-1006.
[9] Weinstein, supra note 9 at 1005-1006.
[10] Ibid.
[11] Administration of Justice Act, RSO 1990, c A6, Reg 293/92, s 1(1.)(ii,).
[12] Ibid.
[13] Supra note 4.