According to Chief Justice Morawetz of the Superior Court of Justice in section C.1 of the recent Consolidated Notice to the Profession, Litigants, Accused Persons, Public and the Media, effective May 19, 2020
“The Court…calls upon the cooperation of counsel and parties to engage in every effort to resolve matters. For civil proceedings, this includes attendance at mediation—whether prescribed or not where a mediator is willing to engage in a virtual mediation.”
What is virtual mediation?
Virtual mediation is a mediation in which the participants do not attend in person. Commonly known as online mediation or online dispute resolution (ODR), virtual mediation includes using a videoconference platform, such as Zoom (like the Courts). Virtual mediation can also refer to mediations conducted by way of telephone and/or email. Telephone and email can also be used to supplement a video conference mediation.
While virtual mediation has existed for years, its recent rise in popularity in Ontario is due to the physical distancing required by the COVID-19 pandemic. The Chief Justice’s dictum above gives official sanction to what is already an increasingly common practice during the last two months.
Why claim virtual mediation is “mandatory”?
I submit that virtual mediation is now virtually mandatory for the following four reasons:
- The call to attend virtual mediation is from the Chief Justice.
- We are in a global pandemic. The courts are not yet fully operational. Even as operations increase over time, there will be a tremendous backlog of cases.
- The use of the words “whether prescribed or not” is extraordinary. It means we are asked to engage in virtual mediation even for the types of cases and in regions where mediation is not already mandatory under Rules 24.1 and 75.1 (i.e., outside Toronto, Ottawa and Windsor, the Commercial List, Small Claims Court, and more).
- Enforcement is not an issue. Expect that the Court will order parties to attend a virtual mediation if a motion is brought (judges are already ordering on-line discoveries). As well, parties who refuse to engage in virtual mediations will be likely be penalized by costs later. In fact, pre-COVID, the Court was already penalizing parties for refusing non-mandatory mediations through cost orders.
Any virtual mediation tips for me?
Yes, I have 40 of them, and some! I recently released a free ebook, 40 Mediation Advocacy Tips for Ontario Lawyers. The first one I’ll call attention to is Tip 2, “Treat All Mediations as Mandatory”. Additionally,
- In my experience, as a lawyer who has attended mediations for 25 years and as a mediator for more than a decade, virtual mediation is as effective as mediation in-person. It also takes the same length of time and results in a net costs savings due to the elimination of travel and room rental expenses.
- Privacy concerns regarding online mediations are exaggerated, in my view, especially as Zoom (in particular) makes security improvements, and if you have an experienced mediator handling the security settings. At the same time, privacy concerns regarding in-person mediations are, in my view, understated (thin walls, loud voices, indiscrete conversations in common areas).
- Zoom can provide for virtual breakout rooms for private caucus discussions as well as a main ‘waiting’ room for joint/plenary sessions if desired.
- Rule 3.2-4 of the LSO’s Rules of Professional Conduct requires lawyers to consider the use of ADR and, when appropriate, inform clients of ADR options (such as virtual mediation) and, if so instructed, to take steps to pursue those options. It would be difficult to argue that a virtual mediation is not “appropriate” at this time.
OK, but what if I still want to wait for an in-person mediation?
Considering everything above, I advise against it.
While I too look forward to conducting in-person mediations again when it is safe and practical to do so, the spectre of COVID-19 will, unfortunately, be with us for the foreseeable future. I question the effectiveness and attraction of in-person mediations held in 2020 when we will need to be 6-feet away from one another, many of us will be wearing masks, certain people will be reluctant to attend in person for various reasons, and those who attend have to worry about potentially exposing themselves (and others) to coronavirus.
Meanwhile, there is a viable online alternative where reading facial expressions and body language are not issues, you can have private conversations, and no one needs to worry about personal health and safety.
Does Rose Dispute Resolution conduct virtual mediations?
Yes. We have been regularly hosting Zoom mediations since March. We will use platforms other than Zoom upon request. To help build confidence in the virtual mediation approach, we also offer interested counsel free online demos or tours prior to booking or attending mediation.
For further inquiries, or to book a mediation, click here. I look forward to a virtual mediation with you.