Mediation is a large part of an estates practice, particularly in Toronto where it is mandatory. It is a critical process that often leads to faster and more cost-effective resolutions than trial litigation. Finding the right mediator, who is also available to mediate when you need it to happen, is not always easy. Different cases call for different types of mediators.
The particular dynamic of a dispute may, on occasion, make it advisable for counsel to seek a sitting judge as a mediator. This approach is somewhat unconventional as it is almost always the case that lawyers, certified mediators or retired judges are selected to mediate a case.
In an interesting article by The Honourable Warren K. Winkler in the Winter 2010 issue of The Advocates’ Journal , His Honour touches on the movement towards mediation in the civil justice system over the years, the arguments for and against judicial mediation, and the difficulty of judicial mediation being both a reality and fantasy in Ontario (this is a good read). On this last point, His Honour notes the fact that while judicial mediation exists, its availability is complicated by several things, including lack of court facilities to hold mediations, difficulties with timetabling and, most importantly, judges who do not want to work in the “too unfamiliar and informal” mediation environment.
Winkler J.’s view is that judicial mediation should be expanded to meet the pressing demand within the civil justice system, and the court system ought to adapt to allow it. I, for one, would be very pleased to see this happen.
Have a good day,
Natalia R. Angelini – Click here for more information on Natalia Angelini.