CASE MANAGEMENT AND MANDATORY MEDIATION
Civil Case Management was introduced in 1997 through a new rule (rule 77.01). In Toronto presently, it is applicable in limited circumstances only, but not so in Ottawa and Windsor. The types of cases not coming under case management, among others, are construction liens, bankruptcy and insolvency, actions or applications certified as class proceedings, and Commercial List proceedings. Cases commenced on or after July 3, 2001, were case managed following the requirements of rule 77. Approximately 25 percent of all cases were randomly assigned before that date to case management by the registrar. Subsequently, a practice direction was introduced directing that cases in Toronto would no longer be automatically assigned to rule 77. This change was due to concerns among the bench and bar about delays in the civil justice system in Toronto. Although, the practice direction reiterated the court’s continued commitment to effective case management, but pointed out that some difficulties have arisen in its universal application because of the large number of cases in the Toronto region.
Actually, a three-year pilot project introduced in Toronto commencing on December 31, 2004 put an end to the automatic assignment of cases to rule 77. The details of the pilot project can be seen in a Superior Court of Justice Toronto Region Practice Direction titled “Backlog Reduction/Best Practices Initiative” and dated November 22, 2004.
The key features of the Toronto civil case management pilot project are:
- no automatic assignment of otherwise eligible cases to case management;
- if the court considers it to be advisable, rule 77 will be applied to a proceeding; and so on.
Reasons for case management
The primary reason was to address issues of excessive expense and delay in the administration of civil lawsuits. In fact, earlier the progress of a civil action was almost entirely up to the parties and their counsel. The measure gave the courts a much more significant supervisory role over the progress of cases moving through its system. Notwithstanding the experience in Toronto, due in large part to the sheer number of cases in that region, the courts remain committed to the principle of case management. This would be seen in the excerpt below:
“77.02—The purpose of this Rule is to establish a case management system throughout Ontario that reduces unnecessary cost and delay in civil litigation, facilitates early and fair settlements and brings proceedings expeditiously to a just determination while allowing sufficient time for the conduct of the proceeding.”
Having regard to the criteria specified under case management, the plaintiff has to decide if the case should proceed on “Standard Track” or “Fast Track”. While choosing a track, the plaintiff should be aware of all relevant considerations including, the complexity and public importance of the case, the likely expense to the parties and the time required for proper discovery, and preparation for trial or a hearing. Whatever is selected is to be recorded in a specified form. Naturally, cases on the fast track will proceed more quickly through the system. Settlement conferences will automatically be scheduled by the registrar no later than 150 days after the filing of the first defence in fast track cases and no later than 240 days after the first defence is filed in standard track cases. If the case is not settled by the time the conference is held, a trial date will be assigned. All examinations, production of documents and related motions have to be completed before the date of the settlement conference. The timetables for mandatory mediation in fast and standard track cases are also different. Under case management, a judge or master has the authority to transfer a case from one track to the other at an early stage in the proceedings. There is also a provision for more general power to make a similar order by a master or judge.
Case management judges and masters have broad powers to make any orders as may be necessary to carry out the purpose of rule 77.11. Among other things, they are authorized to require a hearing, case conference, or conference call to deal with any matter arising in the case, extend or abridge a time prescribed by an order or the rules, transfer a case from one track to the other, and make orders, impose terms, give directions, and award costs as necessary to carry out the purpose of the rule. In addition, they have the power to bring any eligible non-case managed proceeding into case management. One of the unique features of case management is that the same individual court officer will be hearing and determining all interlocutory motions within a case managed action.
Mandatory mediation means that lawyers in the jurisdictions where it is applicable will be attending a mediation with their clients long before a trial in the matter (if it ever gets to that stage) in almost every case. Over the centuries, lawyers have been trained to take cases to trial, through courses in trial advocacy and evidence, as well as in substantive law. Now, besides that the lawyers have to advise clients how best to approach a negotiated resolution of their cases, often without having had examinations for discovery or even full documentary discovery. Consequently, a new approach to the role of counsel has evolved, fundamentally affecting the way lawsuits are conducted in the process. Lawyers representing clients in this system are knowledgeable about and skilled in both “mediation advocacy” and “trial advocacy.” Negotiation process is not new to the legal profession, but study of negotiation in a formal way is fairly recent.
The process consists of several stages including:
- pre-session preparation;
- introduction of the process;
- information exchange;
- exploring the issues and interests beneath the positions; and
- option generation, development, and closure either by creating an agreement or agreeing on the next step(s).
The mediator usually takes the initiative at the start of the mediation to explain the purpose. Following this, (whether voluntary or mandatory) each party will present their case so as to educate the mediator about the nature of the case, and to facilitate preparation of a list of issues which need to be addressed; state their concerns while the other party is compelled to listen and hopefully hear the real, rather than the imagined concerns of the other; and give each side an opportunity at the outset to have some uninterrupted time to state their position, be heard by the mediator and vent some emotion.