Ontario’s Chief Justice Warren Winkler (left) and Attorney General Chris Bentley (right).

The Ontario government should consider implementing free court-based mandatory mediation for family law litigants, says Ontario’s Chief Justice Warren Winkler.

Asked to elaborate on his call at the opening of the courts last month for a “fresh conceptual approach” to family law dispute resolution, with mandatory mediation as its core, the chief justice told The Lawyers Weekly that such an initiative should be government-funded, in his view.

“It would be part of the court process and it would be at no cost to litigants,” he explained in an exclusive interview.

“The mediators could be judges. They could be non-judges. They could be brought in from outside,” he suggested. “There are various options that are open. I am attaching no conditions to that at all. But they would be part of the court process. It wouldn’t be private mediation.”

Emphasizing that he is “trying to get a discussion going” and that “other people may have better ideas,” Winker said he believes free early mandatory mediation would lead to cost savings because the bulk of family law cases could be resolved more quickly than at present in the costly, overburdened, judge-focused system, which is heavily backlogged in parts of the province.

“I am a big proponent of mediation,” commented the ex- labour lawyer who has been pushing for a more affordable and understandable justice system since he was appointed chief justice three years ago.

According to the chief justice, mediation “is the way to go with a lot of things. It’s very user friendly, and it’s cost-efficient and it gets things done more quickly. And time not only means money, but time means that the stress and the issues go away.”

However Ontario Attorney General Chris Bentley told The Lawyers Weekly there is simply no money in government coffers these days for “big changes,” including mandatory mediation.

“We are not in a position to do that at the moment,” he said. “Whether it’s the right thing to do — that in all cases the government steps in to pay for [mediation], I don’t know about that. We haven’t had that public discussion. But we aren’t in a position to do that.”

In his speech last month, Winkler questioned “the effectiveness of the slow and steady approach of fine-tuning and rationalizing the present [family law] system. Rather than incremental change, perhaps it is time to consider a more dramatic and pragmatic revision of the manner in which family law services are delivered across Ontario.”

Expanding on those remarks, he told The Lawyers Weekly he envisions three “critical” up-front elements to a revamped family law process: early mandatory disclosure “which I underline three times;” the early provision of information to the parties (the Ontario government recently announced it will roll out mandatory information programs to all 17 Family Court branches starting in April 2011); and legal representation (last year the government pledged a $150-million infusion for the legal aid system, including some cash for family law).

Under the chief justice’s proposal, parties could only go to court if their dispute could not be appropriately settled by mandatory mediation.

“This is not one size fits all — there has to be some judgment applied,” he emphasized. Therefore the new family dispute resolution process would be presided over by gatekeeper judges, who would “triage” cases by setting them on the appropriate path to resolution.

“Every case can’t be mediated,” Winkler emphasized. “There are some cases that involve spousal abuse,…the safety of children etc. etc., those kinds of cases can’t be mediated. And so somebody has to decide those cases that are not going to mediation.”

He suggested judges can be freed up for triaging by passing on to appropriately trained court officials certain types of time-consuming work such as calculating support payments, doing consent divorces and resolving routine day-to-day parenting issues under separation agreements. “I would say we can realign…these jobs and free up the judge’s time.”

He also said he believes that mediation would be effective for many high conflict divorce cases. “Mediation is not a process that is only suitable to easy cases,” he observed. “Mediation is very suitable [for] difficult cases also and I don’t think mediation should only apply to easy cases. I think mediation can easily be a process that resolves hard cases and I don’t think we should all be caught up in percentages of success. This isn’t baseball. We are not looking at batting averages. We are looking at trying to help the public. And so we don’t only take on cases that we can succeed at. That’s not the test. We ought not to look at it on the basis ‘Is this a case that we can settle?’ ” he said. “I have settled all kinds of cases that when I started out I didn’t think I could settle. So I don’t think that’s the test whether the mediator can settle it. I think it’s whether [the case] cries out for mediation. That’s the test.”

The chief justice said family court judges he has spoken to are in favour of mandatory mediation. He also stressed he is not locked into his ideas, and simply wants to spur public discussion and action about a very important problem.

While stating that the government can’t afford to make large changes in the family law system at present, Bentley noted that 800 family law litigants in Milton, Ont. and Brampton, Ont. have already benefited from the volunteer efforts of lawyers and mediator teams who are delivering the mandatory information programs the province introduced last June. More than half of Ontarians will get access to such programs in 20 locations over the next year or so, he said.

“We don’t have lots of additional resources but working with the judiciary and the members of the Bar we have found ways of fundamentally changing the approach to resolving family cases in quite a number of jurisdictions and we are going to keep doing that,” he said.

Bentley also praised the recently unveiled recommendations of a “summit” on family law reform that was spearheaded by the Ontario Bar Association, the ADR Institute of Ontario (ADRIO), and the Ontario Association for Family Mediation.

The resulting report calls for a “paradigm shift” in family law cases, including requiring one or two mandatory attendances at family information sessions (depending on whether children are involved) as well as a mandatory meeting with a court official to triage cases to the most appropriate route for resolving their cases. “The hope is that the majority of people would be appropriate for mediation and collaborative law,” said Barbara Landau, the lawyer/psychologist and ADRIO director who co-chaired the summit.

Landau told The Lawyers Weekly the conference participants would ideally like the government to fund honorariums for the lawyer-mediator teams who are conducting the family information sessions, and to pay discounted rates to the members of the Bar who are currently volunteering to do settlement conferences.

She also said funding is needed for more duty counsel, to expand unified family court across the province, and to create an agency that automatically recalculates child support so that parents aren’t forced to go to court to try to get financial disclosure from recalcitrant ex-spouses.

Another summit participant, senior family law practitioner Philip Epstein of Toronto’s Epstein Cole, said the conference’s recommendations are “a wonderful first step” to improving the family law process.

But he added that “to try to do family law reform without additional financial resources is not possible. The family law system is in deep, deep trouble and needs fundamental fixes, and the four pillars [of reform proposed by the government] will, regrettably, not do it.”

The four reform “pillars” put forward by the government are: providing early information for separating spouses and children; assessing parties and directing them to appropriate and proportional resources using a triage approach; facilitating greater access to legal information, advice and ADR processes; and developing a streamlined and focused family court process.

Epstein noted that the family courts in the areas around Toronto are particularly “overburdened and under-resourced, and it is obvious that there are thousands of family law clients who are not getting access to justice on a timely basis, and some not at all. To reduce the significant time periods and the backlogs not only requires systemic changes in the system, they require more court rooms and more judges.”

He added that everyone who works in family law agrees that a “front-end loaded system” with case management is needed to reduce backlogs. But “you have to have enough judges to case manage and you have to give them enough time,” Epstein stressed.

Bentley said his government is taking a “pragmatic” approach in difficult economic times that is producing helpful changes. “We are in an era of next to no money…so if the only way you can have a conversation [about reform] is to say: ‘Give me more money and we will decide how to spend it’, it’s not going to happen,” he observed. “We are making [change] happen — not me [but] members of the Bar, the judiciary, those who are dedicated to reform — they are making it happen on the ground.”