Topic Four:

Models for the Delivery of Mediation

Readings:

Liebmann, M. 'Community and Neighbourhood Mediation' in 'Rethinking Disputes : the Mediation Alternative' Macfarlane, J. (ed) Emond Montgomery 1996 @ 184

Feld, L. & Simm, P. 'Complaint-Mediation in Professions' in 'Rethinking Disputes : the Mediation Alternative' Macfarlane, J. (ed) Emond Montgomery 1996 @ 253-254

Practice Direction, Ottawa Region, Court-Connected Mediation Pilot Project

There are at least four quite distinct models for delivering mediation services emerging throughout North America. These are

1. Community models, where mediation services are offered at a small fee or for no fee at all via community centres, with the majority of mediations conducted by trained volunteers. Referrals may come via the community and local agencies and/or from the formal justice system
2. Justice system models, where mediation services are formally connected to the civil or criminal courts and take referrals from the courts on either a mandatory or voluntary basis. The degree of 'court-connectedness' varies and will be discussed further below
3. Private models, where mediation is offered by private practitioners or organisations of practitioners
4. Organisational models, where existing organisations (corporations, government) develop their own dispute resolution systems for dealing with external or internal conflicts and use internally trained mediators

A typical community mediation service referral system is illustrated by the excerpt from Liebmann (1996) in the Course Manual. In this particular model, 'case development' before mediation is an important part of the process. The case development process - characteristic of many community mediation services - builds in an opportunity for the assigned mediator or mediators to speak with each party before the formal mediation meeting. Sometimes the dispute can be resolved by the facilitation of party-party communication in this way, short of a face-to-face meeting. Community mediation services often place considerable emphasis on self-help, in other words, enabling the parties to resolve the dispute themselves with minimal assistance from the mediation service or the justice system. Many of these disputes are pre-litigation, that is, they have not yet resulted in the filing of a civil claim.

Examples of community mediation services that operates in Ontario using a similar case development include St Stephens Community House, Toronto, Downsview Mediation Services, and Community Justice Initiatives of Kitchener.

Justice system models are built into the justice system - both civil and criminal - and serve to 'divert' cases already in process. There are many variations on this model, including

• when the case will be referred to mediation
• whether referral is 'opt-in' (purely voluntary) or 'opt-out'
• whether mediation is conducted on the courthouse premises
• whether the mediators are court employees or privately contracted mediators

The Ontario Early Mediation Programs are both 'opt-out' programs which apply to civil matters in the Ontario General Division. Each refers cases after the filing of the first statement of defence. However the two pilots - in Toronto and Ottawa - illustrate several design variations. The Toronto General Division project offers mediation in the ADR Centre, a public facility operated jointly by the Court and the Ministry of the Attorney-General. Mediators are employed by the Centre. The Ottawa program offers mediation by private mediators working out of their own facilities. These mediators have been placed on a court approved roster.

An important issue for the delivery of mediation services in a justice system model is the degree of 'court-connectedness'. There are concerns over how far the Court will supervise and be accountable for the mediation process. This has proved to be a controversial issue in the framing of the proposed Civil Rule for court-connected mediation throughout Ontario.

Another important issue is the degree to which litigants choose to participate in mediation, as opposed to being required to participate. Historically, voluntary 'opt-in' programs in North America have had a low take-up (see for example the evidence in the RAND survey of federal court programs under the 1990 Civil Justice Reform Act, 1997) The 'opt-out' model in Toronto requires the parties to bilaterally agree to remove themselves from mediation, by filing a form to this effect. The Ottawa model requires a hearing at which the party or parties must argue that mediation would be inappropriate.

There are a growing number of private mediation service providers, catering principally to a corporate commercial clientele. In addition there are a growing number of private mediators who specialise in family matters. A glance at your local Yellow Pages will probably turn up at least a handful of names.

Finally, increasing numbers of corporations and other organisations are putting in place their own systems for alternative dispute resolution of grievances and complaints, many of them using mediation. Many organisations (for example, the Royal Bank, the RCMP, the College of Physician and Surgeons (see Feld & Simms, 1996)) have trained internal mediators to deal with conflicts arising out of employee grievances, discipline issues and/or complaints from the public.

In the excerpt in the Course Manual, Feld & Simms (1996) describe this approach to dispute resolution - where an employee of the organisation provides mediation to the disputants - as 'interested complaint-mediation' or ICM. Later in the same paper they suggest that this most appropriate where the complaint is relatively minor, fresh or unemotional. Alternatively, some disputes require an outsider's intervention. Feld & Simms describe this as 'neutral complaint-mediation' or NCM and suggest that it is appropriate where the issue is especially complex or sensitive or where the 'neutrality' of the mediator might be an issue for one or both parties.

What considerations might be important in determining which model of mediation service delivery might be most suitable for your matter...

Consider the following examples:

• ....a matter which is pre-litigation or likely not to result in a legal claim
  
• ....a complaint made against an organisation with an internal ADR process
  
• .....a dispute that arises out of a workplace conflict
  
• .....a General Division matter?

This is a good point at which to incorporate listening to the second lecture on the audiotape provided with the course materials. In this lecture, Professor Neil Gold discusses the design and delivery of mediation services, including the current proposals for court-connected mediation in Ontario.

To discuss the issues raised in Professor Gold's lecture, as well the questions posed above, along with any other issues that relate to the design of mediation service models, please move now to Discussion Room Four, 'Models for the Delivery of Mediation Services'.