Jury out on mandatory mediation

The City of Toronto’s new mandatory mediation program could result in quicker and more efficient resolutions of insurance lawsuits, lawyer Paul Iacano told a packed conference room at a seminar at the recently held Claims ’99 Ontario Insurance Adjusters Association conference.

Iacano’s co-speaker, lawyer James Howie, disagreed, contending the jury is still out on the project’s benefits, and that the time and money consumed by mandatory mediation could unnecessarily discriminate against the plaintiffs.

Mandatory mediation is a pilot project that began January this year and will be evaluated over a three year span. Under the project, insurance lawsuits are randomly selected for mediation, with the procedure mandated to occur within ninety days after the filing of the Statement of Defense. If a resolution is not possible through mediation, the case is returned to the courts system and proceed through the traditional legal channels. The pilot project has been enacted in order to reduce the amount of court time tied up by insurance litigation.

The project is currently being piloted in Ottawa with great success, says Iacano of Iacano Brown Barristers & Solicitors in Toronto. He has experience as both counsel and mediator. Iacano says two-thirds of the cases sent to mediation in Ottawa have been settled, with only a third returned to the courts. “I’ve become very comfortable with mediation and I believe it works. When Toronto gets to the end of the pilot, I believe the numbers will be similar to the Ottawa experience.”

“The public benefits because they get the cases resolved without the agitation or turmoil of going through the trial process”

He adds that even cases that do not get fully resolved in the mediation process might ultimately run more efficiently through the courts, as some issues are negotiated and agreed upon through mediation. “In some cases where mediation has solved some issues but still returned the case to the courts, the pre-trial judge has ordered it back to mediation,” he says. Iacano has taken part in more than 200 cases, of which only 10 have not been resolved. “Mediation works especially in personal injury cases where there is no dispute about liability. The public benefits because they get the cases resolved without the agitation or turmoil of going through the trial process,” he adds.

Howie, a partner with Toronto law firm Thomson Rogers Barristers & Solicitors, disagrees with Iacano’s assessment. He argues that the procedure can add extra time and costs to the legal process. In his presentation, Howie examines the procedure rule by rule, showing how it places unnecessary burdens on its participants.

He says the program creates extra steps in the litigation process. Ninety days from the Statement of Defence to mediation can be an unreasonable length of time, he argues noting many personal accident cases need much more time to determine the true nature of long-term injury costs. And, filing a motion for an extension past the ninety days — allowed under the program rules — adds yet another step to the process, he notes. “Participants in the process must pay for the procedure, and again, that adds more costs to both sides,” he insists. Furthermore, the extra billing hours and legal costs are not as significant for the wealthier insurer defendant, but can severely impact the individual insured plaintiff, he adds.

Iacano acknowledges the extra costs and time consuming steps inherent in the process but believes the long-term benefits — less time spent in court and quicker resolutions — outweigh any short-term shortcomings of the process. “I know a lot of lawyers feel this is going to be another step that the courthouse has imposed to prolong the litigation process,” he says. “My experience though is when you get good lawyers working in their client’s best interest when sitting down with the mediators, most cases can be solved. I can’t deny that there are extra steps and costs in the process, but the statistics, particularly Ottawa’s 64% resolution, bears notice.” According to Iacano, insurers are well served by the process as it offers a quicker settlement, closing files and saving long-term legal costs.

The mandatory mediation seminar was one of six educational workshops at Claims ’99, a conference organized by the OIAA for insurance professionals and claims handlers. The event, held at Toronto’s Convention Centre, boasted over 1300 delegates and 150 exhibitors and featured a luncheon keynote address by hockey hall of famer and former Toronto Maple Leaf superstar Darryl Sittler, addressing delegates just days before he attended the final NHL game played at hockey shrine Maple Leaf Gardens.