Learning from Experience :
An Evaluation of the Saskatchewan
Queen's Bench Mandatory Mediation
Program
Final Report
May 2003
Dr. Julie Macfarlane
with Professor Michaela Keet
Submitted to Saskatchewan Justice Dispute Resolution Office
2
Acknowledgements and credits
Primary acknowledgement must go to Professor Michaela Keet of the College of Law at the
University of Saskatchewan. Professor Keet worked with me as a partner at all stages of the
evaluation project, from the development of the evaluation methodology, through the conduct of
interviews and discussion groups, to our final reflection on what the data told us. Professor Keet
also provided many helpful comments on both the Interim Report and the Final Report. In a more
mundane but nonetheless critical role, Michaela was also the official driver and navigator for this
project as we traversed the province of Saskatchewan soliciting input from program users. Her
insight, analysis, knowledge of the field and intuitive sense of diplomacy have been invaluable
throughout this project and I cannot thank her enough.
The excellent work of Jennifer Mathers (Windsor Law, 2003) in coding the electronic data should
also be acknowledged.
Sincere thanks are due to the members of the Evaluation Advisory Committee for their
commitment to this project, and for their willingness to educate me on the history and context of
mediation in Saskatchewan. I was extremely fortunate to work with Mr. Justice Maher of the
Prince Albert Court of Queen's Bench, Marty Popescul of Sanderson Balicki Popescul, Robert
Leurer of MacPherson Leslie & Tyerman (and President of the Saskatchewan Branch of the
Canadian Bar Association), Paul Hildebrand, President, Mediation Saskatchewan, Rod Crook
Executive Director, Courts & Civil Justice, Saskatchewan Justice, Linda Bogard, Director, Court
Operations Saskatchewan Justice, Dennis Berezowsky, Local Registrar, Saskatoon Court of
Queen's Bench and John Jacques, Assistant Director, Dispute Resolution Office. This group
worked with me to refine the evaluation methodology, facilitate access to lawyers and clients for
data collection purposes, and later assist me in the interpretation of data and the consideration of
program design options. Although the conclusion and recommendations of this Final Report are
entirely my own, their wise counsel was highly influential and very supportive.
A number of people in the Saskatchewan Dispute Resolution Office were also critical to the
successful completion of this work. Ken Acton had the foresight to plan for this evaluation and
along with John Jacques, provided support and encouragement throughout. Melissa Wallace,
Manager of Programs and Operations, played the most significant role at The Dispute Resolution
Office. Melissa responded to our countless requests for information, facilitated access to lawyers
and clients, and performed numerous other tasks in relation to the smooth conduct of the
evaluation. She deserves credit for this labour without which this study would not have achieved
its goal of ensuring a comprehensive review of the Queens' Bench mediation program at all sites.
Thanks are also due to Bonnie in the Regina Dispute Resolution Office Office and to Leslie in the
Saskatoon Dispute Resolution Office.
As always, the individuals who participated in discussion groups and interviews, submitted
written comments, and encouraged their colleagues to do likewise, are owed a debt of gratitude.
Thank you for your willingness to contribute to this evaluation, and I hope you will see your
many and diverse views reflected herein.
All errors and omissions that remain are my responsibility alone.
Julie Macfarlane, Kingsville, April 2003
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TABLE OF CONTENTS
Executive Summary
Part I : Methodology
1. Evaluation Goals
2. A Qualitative Orientation
3. Qualitative Data Collection
4. Qualitative Data Coding and Analysis
5. Sample size
Table One Evaluation respondents
Pie Chart One Evaluation respondents
6. Quantitative Data Collection
Part II : Data Analysis
1. General Benefits of Mediation
a. A structured face-to-face meeting
b. As a means of achieving systemic change
c. Mediation produces surprises
d. Access to justice
e. collateral benefits
2. General Criticisms of Mediation
a. The Timing of Mediation
b. The Mandatory Nature of Mediation/ the Exemption System
c. The Mediator's Role
i. Evaluation by the mediator
ii. Mediator proactivity
iii. The mediator's role in finalizing settlements
iv. Beyond facilitation
d. Compliance
e. The Role of Counsel
3. Other Observations
a. The use of conference calls
b. Access to extended mediation sessions and subsequent sessions
c. Information for the parties
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d. "Culture change"
e. Implications for legal education
4. Quantitative Data Analysis
a. What are the outcomes of mediation?
Table Set Two Reported outcomes in all case categories : by year
1999-2002
Pie Chart 2 (A) Reported outcomes 1999/2000
Pie Chart 2 (B) Reported outcomes, 2000/2001
Pie Chart 2 (C) Reported outcomes, 2001/2002
Table Set Three All programs, comparison of reported case
outcomes in all case categories, 1999-2002 : by
reported outcome
i. How typical is Saskatchewan's rate of settlement?
ii. How accurate are reported outcomes?
The 2001/2002 Audit
The 2001/2002 Status Checks
Table Set Four Status Checks 2001/2002
iii. Are outcomes significantly affected by case type?
I. Contracts, Personal Injury and Wrongful Dismissal
cases
Table Set Five Case type data 1999-2002 : by reported outcome
II. Malpractice cases
III. Simplified Rules cases
Table Set Six Settlement by case type 1999/2000, Saskatoon
Simplified Rules cases
iv. Repeat players
b. Does mediation reduce time to settlement?
c. Is the system of exempting certain cases from mediation
working efficiently without undermining the mandatory
nature of mediation?
Table Seven Exemptions from mediation
5
Part III : Recommendations for Program Modification
1. The Mandatory Nature of Mediation
2. The Timing of Mediation
a. The initial referral to mediation
b. Requiring the filing of a statement of documents before mediation
c. "Loop-backs" to mediation
3. Adjournments
4. Exemptions
5. Information for the parties
6. Mediator style, training and qualifications
7. The role of the mediator in finalizing settlement outcomes
8. Providing more choices to program users
a. mediator selection
b. An optional "enhanced package" of mediation services
d. Formalizing opportunities for (i) longer (ii) further mediation sessions
9. User fees
10. The role of counsel
11. Retaining a presumption of face-to-face meetings
12. Unrepresented (pro se) clients
13. Enhanced liaison and co-ordination between the Dispute Resolution Office
and the Court of Queen's Bench
14. Enhanced case and program data systems
Appendix A Lawyers Discussion groups : May
Client Discussion groups : September
Appendix B Lawyer Discussion groups : September
Client Discussion groups : September
Appendix C Interviews with Judges
Appendix D Follow-up interview questions
Bibliography
6
Executive Summary
The evaluation data, both qualitative and quantitative, which has been collected and
analyzed for this study illuminates the operation of the Saskatchewan Queen's Bench
mediation program and gives voice to the experiences of program users. It provides a
detailed picture of the relationship between lawyers, their clients, the mediators and the
structure and design of the present program.
The Saskatchewan Queen's Bench mediation program is perceived by almost all the
individuals we consulted as appropriate, and its objectives ­ the faster and more
satisfactory reaching of settlement in some civil matters ­ fully achievable. It became
rapidly apparent that the question that respondents were most interested in discussing
with us was not whether the program should be maintained, but how it might be
improved in order to better achieve those objectives.
The consensus that emerges is that the program is reaching its goals in many individual
cases, but not in others. While there is widespread support for both its universal nature
and the present timing of mediation, many respondents called for greater flexibility in
relation to both aspects of program design. In addition, there is an interest in rethinking
the role of the mediator to clarify and perhaps sharpen this point of intervention with
greater proactivity, and perhaps some type of enlarged role before and after mediation in
certain cases.
There are also a few clear problems with the design of the present program. One is that
some cases proceed to mediation with insufficient preparation, perhaps with little or no
exchange of materials in advance of mediation, and just occasionally, an absence of
"good faith" to negotiate. Another issue (perhaps related to this) is the somewhat
uninformed approach of a small number of members of the Bar in regard to the role they
might most effectively adopt in the mediation process. Each of these problems is
resulting in some disappointment among clients, and some frustration among some
members of the Bar.
None of these issues is unique to the Saskatchewan program ­ similar challenges are
experienced in other mandatory mediation programs. However, the depth of experience
with mediation in Saskatchewan ­ predating the Queen's Bench program to the earlier
initiation of the farm debt mediation program ­ and the clarity and consistency of issues
substantiated by this evaluation, present a unique opportunity to address these challenges.
Fourteen Recommendations are made. These include :
 Mediation should remain mandatory for all civil non-family cases, but attention
should be given to enhancing access to adjournments and exemptions where an
appropriate case can be made
 Mediation should continue to take place early in the litigation process, but with
the additional requirement that parties first file their statement of documents in the
hope of enhancing the exchange of relevant information before mediation.
7
 Mediation and pre-trial offer parties two distinctive conflict resolution processes,
meeting different party needs at different stages in the life of a file. However,
there should be provision for judicial referral of some special cases back to
mediation at a later stage in the litigation process.
 A range of additional consumer choices ­ including the selection of a mediator
and access to "enhanced services" including second sessions or longer initial
sessions ­ should be made available to program users (the latter on a pilot basis)
 Mediator training should emphasis a proactive approach to the facilitation of
settlement (including a role for the mediator in finalizing settlements), within the
acknowledged constraints of non-evaluative model.
 An education and leadership strategy (including the leadership of the Bench)
should be devised to further enhance a culture of effective conflict resolution
within the Saskatchewan legal community
 The Dispute Resolution Office and the Court of Queen's Bench should consider
the development of enhanced data recording systems to support future program
evaluations.
8
PART I : METHODOLOGY
1. Evaluation Goals
The first step in the evaluation process was to frame the primary questions the client
(Saskatchewan Justice) wished to have answered. These questions were as follows:
a. To evaluate how far the mediation program in the Queens' Bench meets the needs
of the people of Saskatchewan (focusing on discussions with client users);
b. To assess the impact of the mandatory mediation program on civil litigation
practice in Saskatchewan (focusing on discussions with members of the Bar);
c. To determine the efficiency of the Queen's Bench program (from available
program statistics).
2. A Qualitative Orientation
In order to evaluate the success of the Queen's Bench mediation program in meeting
users' expectations and needs, and to assess the systemic "cultural" impact of this major
innovation, qualitative methods such as discussion groups and interviews are particularly
appropriate (Krueger, 1994). Qualitative data is essential in order to understand the
unique internal dynamics of a program and in order to fully differentiate the views and
attitudes of different user groups. These methods can focus intensely on the detail of
cases and process in order to identify and establish significant patterns (Huberman &
Miles, 1993, Palton, 1991). The purpose is to discover as much as possible about
individual experiences with the mandatory mediation program.
3. Qualitative Data Collection
May 2002
Our first step was to conduct an initial round of discussion groups with lawyers and
clients, and interviews with mediators, at two sites (Saskatoon and Regina), in order to
address questions (1) and (2) above. In these sessions participants were presented with
the three primary evaluation questions and asked for their responses. While the May
discussion groups were informed by what we already know from earlier research on
mandatory mediation elsewhere in Canada and the United States, open-ended questions
were used and all comments and reactions encouraged in order to discover the particular
issues and concerns that are key to answering these questions in Saskatchewan (see
Appendix A).
These initial discussion groups included only a small number of lawyers and clients, but
immediately produced some clear patterns in response. Client users were very positive
about the potential of mediation and generally welcomed the initiative, but many focused
on criticisms about the way the process was handled by their lawyers and the role played
by lawyers generally in the process, which was seen by these clients as less than
constructive. Concern was also expressed by some clients about what they saw as lack of
9
follow-through after mediation by either the mediator or their counsel; for example,
where they believed that an agreement or the basis of an agreement had been reached in
mediation, but was never executed or implemented.
Most of the lawyers who participated in the May discussion groups were positive about
the program but many had reservations which related to (a) the history of the introduction
of the program (seen by many lawyers as implemented without adequate consultation)
and (b) a number of program design issues. These latter included :
 the timing of mediation in the litigation process
 the role played by the mediator in mediation
 the role played by (other) counsel in mediation, including preparation,
information exchange and bargaining in "good faith"
 the mandatory nature of mediation for all Queen's Bench cases and the
exemption system
These themes formed the basis of our next round of discussion groups in September
2002.
September 2002
Our second step was to refocus the questions we were asking of lawyers, clients and
mediators to reflect the program design issues that had been consistently described to us
during the May visit. In September we returned to conduct a further round of lawyer and
client discussion groups, this time including Prince Albert. We also conducted a lawyer
discussion group at North Battleford, which afforded us the opportunity to speak with
lawyers at a site without formal mandatory mediation.
A conscientious effort was made to ensure that lawyer and client discussion groups were
as complete as possible, including lawyers from all areas of civil litigation practice,
representing both individuals and corporations, and both institutional and personal
litigants (for a complete breakdown, see data sources at (1) above)). This time we saw a
total of 31 clients and 62 lawyers.
The September discussion group questions are included at Appendix B. These are more
closely structured than the May group questions and as a consequence, the data we
collected more specific to program design issues. However, there was still ample
opportunity provided for participants to raise other issues and take the discussion in
whatever direction they felt was important.
In addition we completed our interviews with mediators, making a total of 13 mediator
interviews. The mediator interview questions are included at Appendix C.
October ­ December 2002
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The third and final step in qualitative data collection was to identify individuals with
whom we had not yet met, and whose views appeared to us to be important to the overall
credibility and completeness of the evaluation. The Chief Justice provided us with a list
of five named judges who were interviewed by Professor Keet (see questions at
Appendix C). A further 8 interviews were conducted with lawyers and institutional
clients (see questions at Appendix D).
4. Qualitative Data Coding and Analysis
Contemporaneous notes were taken of all discussion groups and interviews. Each
meeting was also audiotaped to enable checks to be made between the written record and
the recording. A file was created for each (electronic) meeting record and identified by
location (Saskatoon/Regina/Prince Albert); participant role (lawyer/ client/
judge/mediator); date (May/September 2002); and where necessary numbered. The
anonymity of all respondents has been maintained. File names appear through the data
analysis presented below at Part II where it is appropriate to identify a source or sources
for comments. Where a direct quotation is used, the text unit of the electronic file is also
given for reference purposes.
All electronic records of interviews and discussion groups were entered into a data
analysis program (NUDIST) which enables the coding of data to identify themes and
patterns. The remainder of this Final Report is drawn from an analysis of this data and a
review of the coding nodes.
NUDIST works by attaching codes or categories to sentences and/or paragraphs in the
electronic text (records of interviews of discussion groups). Settling on codes or
categories emerges from an initial analysis of the data, as particular themes and patterns
recur. Thus the codes that are ultimately used to organize and structure the data arise
from the data itself, and are not preset or externally imposed. The development of the
appropriate number and type of codes emerges gradually, slowly evolving changing into
a fixed set of codes or categories that appear to take account of all the issues raised by the
data (see list below). At this point the entire database can be coded using these categories.
Once the electronic data has been coded in full, the resulting database can then be
manipulated and sorted in a variety of ways, for example, to disclose all comments made
under a particular code or category, comments made by lawyers or by clients or both, at
one or more centers. This enables an accurate collation of the frequency of these
comments, how internally consistent or diverse they are, etc.
All electronic records of discussion groups and interviews were coded using the
following categories :
11
Demographics
 centre
 role (lawyer/client/judge)
 gender
General expectations of the mediation program
Evaluative Comments
 positive
 negative
Timing of mediation
 should come later in the process
 should come earlier in the process
 is OK where it is
The mediator's role
 comments regarding evaluative/ facilitative style of mediator
 pre-mediation role of mediators
 role of mediators in drafting settlement outcomes
 post-mediation role of mediators
 overall level of intervention by mediator
Compliance
 positive experiences
 negative experiences
 reasons given for experiences
Collateral benefits of mediation
Culture change among the Bar
Implications for legal education
Suggestions for program modification
 regarding compliance
 regarding the use of conference calls
 regarding the role played by the mediator
 regarding ensuring "good faith" by all parties
 regarding case management as a feature of the mediation process
 regarding voluntariness and allowing exemptions from mediation
 the relationship between mediation and pre-trial
Cost considerations
The coded database is stored by the author for the future use of Saskatchewan Justice.
12
5. Sample size
Each of the individuals we consulted spoke with us for at least 45 minutes, and some for
more than one hour. Detailed notes were taken and discussions were also audiotaped.
The final numbers for consultation (via participation in discussion groups, interviews,
and email communications) in each user group are as follows:
Table One Evaluation respondents
May
Discussion
group
September
Discussion group
Interviews Email Total
Lawyers 11 62 4 3 80
Clients 6 31 4 0 41
Mediators 0 0 13 0 13
Judges 0 0 5 0 5
DRO staff 5 0 1 0 6
Total 22 93 27 3 145
Pie Chart 1 Evaluation respondents
80
41
13 5 6
Lawyers
Clients
Mediators
Judges
DRO staff
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6. Quantitative Data Collection and Analysis
In generating and analyzing quantitative data in relation to the program, three questions
were central :
a. What are the outcomes of mediation?
This question includes consideration of the following sub-questions:
i. do case outcomes differ significantly between different
centres?
ii. have there been any noticeable changes over the past three
years in levels of outcome?
iii. how reliable are the outcomes reported (1-5) by the Dispute
Resolution Office?
iv. are case outcomes significantly affected in any way by case
type (insofar as data is differentiated), including simplified
rules cases?
v. what if any impact do the major "repeat players" have on
settlement outcomes?
vi. generally, is the rate of settlement reported for this program
comparable with similar programs elsewhere?
These questions are answered by the data presented below at Part II (4) (a).
b. Does mediation reduce time to settlement?
This question was difficult to answer in light of the data presently captured by the
Dispute Resolution Office and Court Services. It was further complicated by the absence
of a random control group in centers where mandatory mediation applied (foreclosing the
possibility of comparing the length of time to settlement for cases inside and outside a
mediation stream). Insofar as this was possible, this question is considered further below
at Part II (4) (b).
c. Is the system of exempting certain cases from mediation working efficiently
without undermining the mandatory nature of mediation?
This question includes consideration of the following sub-questions:
i. do exemption levels differ significantly between different
centres?
ii. have there been any noticeable changes over the past three
years in level numbers of exemptions granted?
These questions are answered by the data presented below at Part II (4) (c).
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PART II : DATA ANALYSIS
The following four sections present the findings of the evaluation. Sections 1-3 present
the results of our extensive discussions (in discussion groups and via personal interviews)
with lawyers, counsel, mediators, administrators and judges. These findings are supported
by our analysis of the records of all these meetings, analyzed in the NUDIST database.
Where appropriate, quotations are used and remarks referenced to data sources. The
anonymity of respondents has been preserved by indicating only the discussion group or
a numbered interview (see the explanation above at Part I(4)).
Section 4 below presents an analysis of the statistics provided by the Dispute Resolution
Office. It further examines possible relationships between settlement and case types.
Section 4 also includes the results of an audit of reported outcomes.
1. Overview of Benefits of Mediation
The majority of the analysis and conclusions presented in this Report will focus on
program enhancement and concerns over issues of program design, it seems appropriate
to begin by summarizing the many comments we received from respondents about the
more generalized benefits of the mediation program. This is important not only to
accurately reflect the balance of positive as well as negative comments we heard ­ and
also because these comments begin to fill in a picture of how mediation is understood as
working well by users ­ both lawyers and clients ­ of the Queen's Bench program.
a. The value of an opportunity for a structured face-to-face meeting
Benefits consistently mentioned by lawyers include the potential to meet the other side
and evaluate their credibility (direct communication rather than filtered via their counsel);
to evaluate the credibility of one's own client in a "live" encounter with the other side; to
gather new and important information quickly and informally (for example,
lawyerfollow-upinterview.3) and as a consequence to be able to assess the risk of
proceeding with litigation more realistically (for example, saskatoonlawyersmay.1).
Several counsel talked about the usefulness of mediation to address and defuse intense
emotionality in litigation; for example,
"In some cases, where money is not the ultimate issue, where there are relationship
issues, then mediation can be better suited to these cases."
(reginalawyerssept.1 at 192-194)
Similarly, mediation can also provide "an non-embarrassing forum in which to offer an
apology" (saskatoonlawyerssept.3 at 53)
Benefits consistently mentioned by clients include the impact of seeing the other side as a
"real person", and hearing from them directly ("put a face to the voice and meet the
15
people we were dealing with" (clientfollow-upinterview.1)); being able to tell one's story
directly to the other side and feel listened to (for example, paclientssept.1); an
opportunity to provide an explanation (for example, city or corporate policy. See
reginaclientsmay.1) to the other side; an opportunity to "vent" and "offload" (for
example, see reginaclientsept.2); and as a consequence, an opportunity to possibly restore
business relationships. Some institutional clients also described mediation as a useful way
to access and exchange information informally (for example, see reginaclientsmay.1,
reginaclientssept.1)
These benefits were well summarized by one client who expressed his opinion as
follows:
"It all started over hurt feelings. But then the lawyers got involved and it escalated. This
was the first time we could sit down, face to face, and talk about it. That in itself was
worth it".
(reginaclientsept.2 at 64-68)
The next three categories of benefits flowing from mediation were described by smaller
numbers of respondents than (i) above, but are worth noting for the sake of completeness.
b. Systemic change outcomes
A small number of lawyers and clients talked about the benefit of mediation negotiations
leading to outcomes which could result in changes in the way an organization does
business in the future (to avoid future conflicts). This is because of the nature of the
discussions in mediation, which may consider outcomes beyond legal remedies. For
example, one lawyer described a case involving a client terminally ill with breast cancer:
"We got them (the hospital) to completely redo the protocols regarding how they interact
with patients ­ this was a huge symbolic success for her, even though little money
changed hands".
(reginalawyerssept.1 at 114-118)
c. The element of surprise
Some lawyers also mentioned that it was sometimes difficult to anticipate whether a
mediation meeting would be useful or not. These lawyers acknowledged that even in
circumstances that did not look promising, they were sometimes surprised. It was
suggested that this was a reason to always give mediation a try, even if the parties were
not initially feeling optimistic about its value (see for example, see lawyerspasept.2,
saskatoonlawyersmay.1)
16
d. Access to justice
A few lawyers (for example see saskatoonlawyersmay.1) and some clients (for example
see reginaclientsept.2), understood mediation as a means to engage clients directly in the
process of decision-making over their dispute, enabling them to contribute to the outcome
in a hands-on way. As one client put it, "it (mediation) is a lot less intimidating"
(reginaclientssept.4 at 128). Another put it this way:
"I felt I had something to say and to contribute to the process"
(reginaclientsept.2 at 40-41)
In these comments, this is described as a generalized access to justice value, rather than at
the level of individual engagement.
e. Collateral benefits
Finally, there may be of course be some collateral benefits even for those cases that do
not settle in mediation (see for example, clientinterview.3, lawyerinterview.1). In many
ways, early mediation can function as a reality-check for all parties. As one lawyer
described this,
"Even if no settlement is reached, mediation can substantially move things forward and
put things into a different perspective, seeing the shades of gray that were apparent to the
solicitors."
(palawyersept.2 at units 34-36)
Other secondary effects of mediation (Cooley, 1996) cited by respondents included the
speeding up an exchange of information, the opportunity to vent and to off-load, to meet
first-hand with the other side, and to gauge their credibility.
These results are consistent with work conducted elsewhere on the general benefits of
mediation as these are described by lawyers and by clients. For similar findings, see for
example Bobbi McAdoo's study of the Minnesota Bar's response to court-connected
mediation (McAdoo, 1997), and Roselle Wissler's study of litigant assessments of the
mediation process in Ohio (Wissler, 2002).
2. General Criticisms of Mediation
It is noteworthy that program users in Saskatchewan generally placed less emphasis than
has been noted in other studies on two historically contentious aspects of court-connected
mediation ­ the mandatory nature of mediation and the timing of mediation. While both
of these critiques were raised by some respondents, and therefore reported on below,
generally there appears to be widespread acceptance in Saskatchewan of these core
features of the present program. This may be a consequence of the length of time that the
program has now endured in Saskatchewan, suggesting that it has now reached a period
17
of "post-legitimacy" (Tolbert and Zucker, 1983) where its essential components are not
widely challenged. Similar results have been noted in the Ontario program, especially in
Ottawa, where mediation has been mandatory for all civil cases for almost as long as in
Saskatchewan (see Macfarlane (1995), Hann et al (2001) and Macfarlane (2002)).
What did emerge as a clear concern among both lawyers and clients was how to ensure
that mediators in the Queen's Bench program play the most effective role possible. There
was much discussion of mediator proactivity, and the role of the mediator before, during
and after mediation. There was also considerable discussion of how to ensure that counsel
played the most effective and constructive role in preparing for and participating in
mediation. These discussions reflect a level of sophistication in the use of mediation that
is unusual in evaluation studies and indicates the depth of experience in Saskatchewan
with mediation processes. The concerns and critiques explored in this dialogue have
many implications for future program enhancement and these are discussed further below
under "Recommendations" at Part III.
a. The Timing of Mediation in the Litigation Process
The issue of the timing of mediation ­ which must presently be completed before any
additional applications are made to the Court ­ was expected to figure strongly in our
discussions with members of the Bar. However, this level of concern did not materialize.
A small number of lawyers told us that they would prefer mediation to occur later in the
litigation process ­ after discoveries was the most common suggestion ­ but very few
wished mediation to be fixed at a later point in the litigation process. There were just five
lawyers who felt that early mediation was never or almost never appropriate.
A far more common suggestion was that there should be greater flexibility in timing and
the potential to take a case out of mediation and complete discoveries ­ or at least some
document exchange ­ before returning to mediation. A number of lawyers spoke about
cases in which mediation came too early to be really useful, and where an option to
postpone mediation until after discoveries would have been beneficial (for example, see
reginalawyerssept.2 at 63-64, reginalawyerssept.4 at 39-41). In particular, residential
schools cases (see saskatoonlawyersmay.1 at 44-47), medical malpractice cases (see
reginalawyersmay.1 at 60-61 and palawyersept.2 at 48-51) insurance cases where
liability is denied (see reginalawyerssept.1 at 45, lawyeremail communication.2) were
described as cases in which it was often better to conduct discoveries before mediation
(although this was by no means a unanimous view ­ see the debate at palawyerssept.1,
reginalawyersept.1)
The problem articulated by a number of lawyers is not that the timing of mediation is
"wrong", but that all cases are necessarily treated the same way (for example,
lawyerfollow-upinterview.2). Some suggested that there should be more flexibility in
allowing adjournments of mediation until after discoveries are completed ­ at present the
only option available to counsel is to apply for an exemption from mediation (although
informally, we understand that adjournments are sometimes given by the Director of The
Dispute Resolution Office). Many respondents pointed to the benefits of a presumption
18
of early mediation ­ it forces a face-to-face meeting early in the process (see above at
1(a)); it prevents the parties from becomingly overly entrenched in their positions (see
reginaclientssept.2); it overcomes the resistance sometimes observed by clients of their
lawyers to "put numbers on the table" (see reginaclientssept.1 at 104); and that it avoided
the tendency to put off negotiation until later in the process when this might not actually
be necessary (some lawyers cited the model of collaborative law in this context; see for
example, reginalawyerssept.1 at 123-124). Similarly, in interviews with members of the
judiciary, most expressed the view that while some cases might benefit from flexibility in
the timing of the mediation session, they considered it to be important that the focus
should remain on early post-pleadings sessions. In this way mediation can continue to be
a very distinctive process from pre-trials, and the two processes remain complementary
and not in competition. The relationship between pre-trials and mediation is discussed
further below at Part II (2)(c)(i).
The key word here that reoccurs throughout the discussion group and interview
transcripts is "flexibility". It was also apparent that some members of the Bar were not
aware of the range of options that the present provisions offer in terms of the timing of
mediation, assuming that it had to be done as soon as possible after the close of
pleadings.
A significant number of lawyers said that while originally skeptical, they now felt that it
was appropriate in some cases to go to mediation as early as possible. As one put it, "I am
no longer offended by the earlier process." (see lawyerfollow-upinterview.1 at 38).
Certainly lawyers have a historical bias towards leaving serious negotiations until after
discoveries (Barkai & Kassenbaum, 1989) and this assumption is challenged by early
mediation (see Macfarlane 2002). Several lawyers stated that they had been surprised
with the success of early mediation in some less complex cases and saw this as an
important way of reducing costs to the client (for example see palawyersept.2,
saskatoonlawyersmay.1).
There was a general acknowledgement that in appraising the timing of mediation it was
important to ask "do you have all the information you need?" (see palawyerssept.2 at
100). The question was how to ensure that sufficient information was on the table to
ensure that the mediation was productive. There appears to be a widespread view (see for
example lawyerfollow-upinterview.1) that no discoveries can take place before mediation.
In fact, The Queen's Bench Act only stipulates that no further steps can be taken
following the close of pleadings before mediation. It is presently unclear whether this
clause means that discoveries (as long as these do not require recourse to the court) are
possible before mediation, or whether no discoveries can be commenced before
mediation. The Bar appears generally to adopt the latter interpretation. It would be
helpful to clarify this interpretation (see also "Recommendations" below at Part III).
A related issue is how information might be exchanged prior to discovery which
nonetheless has a significant impact on the usefulness of a mediation session at this stage.
The present program does not impose any explicit requirements of documentary or other
exchange between the parties before coming to mediation. In other cities with mediation
19
programs, counsel have had developed an informal practice of exchanging statements or
affidavits of documents before mediation, and ensuring that information is furnished to
the other side on their request (for example, in Toronto and Ottawa; see Macfarlane
2002). Indeed some Saskatchewan counsel told us that they routinely asked the other side
for documents in advance of mediation (for example, this seemed to be established
practice in Prince Albert; see both Prince Albert lawyer discussion groups). The
mediation program would greatly benefit from formalizing this practice as a requirement
before mediation; see also "Recommendations" below at Part III.
Finally, a couple of institutional clients (for example, see reginaclientssept.3) expressed
an interest in a program that offered mediation before litigation was commenced. Several
lawyers told us that they now attempted mediation before litigation was commenced in
appropriate files, and agreed that they would not have even thought of doing this before
the introduction of mandatory mediation.
b. The Mandatory Nature of Mediation / the Exemption System
In keeping with the theme of "flexibility' regarding the timing of mediation, many
lawyers expressed a desire for a system that gave counsel the discretion to make
arguments that a case was not suitable for mediation and to withdraw with minimal
bureaucracy. A number of lawyers described cases in which they believed that an
exemption from mandatory mediation would be appropriate. These included medical
malpractice cases (see also below at 4(a)(iii)); out-of-province cases (this comment was
often linked to a request for greater flexibility around allowing parties to participate by
conference call, see also below at 3(a)); cases that were raising frivolous claims or
defences; cases involving institutional parties who historically never settled at mediation
(for example the Department of Justice and the residential schools cases; see
palawyerssept.1 at 128-129); and cases where it was painful for a client to retell his or
her story where the other side was not likely to be seriously contemplating settlement (for
example sexual abuse cases and in particular, residential schools cases). However, it was
noteworthy that there were very different views expressed to us on this later point. Some
lawyers working on residential schools cases considered the mediation process to be
therapeutic and healing (for example reginalawyersmay.1 at 73-75); while others decried
it as painful and traumatic (for example reginalawyerssept.1 at 68).
Certainly some clients have been upset by the mediation process, and found their
expectations unmet. One client (the plaintiff in an abuse case) told us that she hated going
through the process of telling her story again, and that the anticipation of having to meet
with her alleged abuser face-to-face produced enormous anxiety for her (see
reginaclientssept.4 at 101-104). This client told us that the other side clearly had no
intention of settling in mediation. There was also a general feeling that where the parties
were not in good faith that a mandatory mediation could be simply an opportunity for
game-playing; one lawyer on medical malpractice suits commented that he had
sometimes seen defendants coached to offer platitudes in mediation which "only a moron
would think are coming from the heart". (palawyersept.2 at 49-50)
20
However, these specific proposals for exempting certain cases did not indicate a lack of
support for the universal nature of the program as it presently stands. There were a
number of lawyers who were clear that they understood and accepted the need for the
program to be mandatory in the first instance, given the potential for lawyers not to use
the process otherwise. Many saw the current impact of the program as linked to its "opt-
out" mechanism. These lawyers said that they understood why it was important to
maintain the program as an "opt-out" scheme, because otherwise lawyers who express
themselves as broadly supportive of mediation might fail to use it in their own cases. One
institutional client made the point that mediation needed to be mandatory in order to
achieve lawyer "buy-in" (reginaclientsmay.1 at 93).
Support for the mandatory nature of mediation was expressed by several lawyers as a
systemic change that had occurred over time in their own practices. One lawyer
commented that the issue of the mandatory nature of mediation no longer seemed to be
an issue among members of the Bar, unlike the earlier days of its introduction
(lawyerinterview.2 at 40). This lawyer commented that he had seen "a huge change in
attitudes over time". Another lawyer described systemic changes in his own practice. He
provided the example of a pre-litigation mediation on a wrongful dismissal matter that he
had participated in the day before. He noted that this mediation ­ which was successful in
resolving the claim and what he described as a very good result for both sides ­ likely
would not have taken place before the days of mandatory mediation. Moreover, "(T)his is
something that never would have happened that way without a mediator."
(lawyerinterview.1at 55)
Although there was widespread acceptance of the case for retaining mandatory mediation
for all civil cases, there were also some misgivings expressed by a smaller
number of lawyers. These reservations centred on certain case types that some lawyers
felt were unsuited to mediation (for example, medical malpractice) and on the principle
that lawyers should be allowed to make the determination for themselves and their clients
as to whether mediation was appropriate. For example, in Prince Albert two lawyers felt
that their small and collegial Bar made it inappropriate to impose mediation, and argued
that Prince Albert lawyers would make use of mediation in any case. (see
palawyerssept.1 at 23). A more pragmatic argument was made by one lawyer in Regina
who pointed out there where the parties were unwilling to use mediation it was unlikely
to work anyway. (reginalawyers1, at 31). However even this critic appeared to be less
concerned about the mandatory nature of mediation if a degree of flexibility were
permitted in choosing the timing of the session.
Many of the mediators also expressed some preference for a narrower focus of cases.
They felt that sometimes their intervention was doomed to failure from the start where
one or more of the parties were convinced that mediation would not work. Some
suggested that they would welcome a broader role for the mediator (for example in
facilitating document exchange and in follow-up, see below at (c)) in cases where there
was a common recognition that mediation represented a real opportunity for full or partial
resolution.
21
c. The Mediator's Role
First, it is important and fair to report that we heard many positive comments about the
mediators, especially from clients who particularly appreciated the time and patience
taken to ensure their comfort with the process. Many clients commented that their
mediators appeared genuinely concerned for their well being, and they were appreciative
of this.
There were a cluster of more critical comments about the role played by the mediators
which were consistent among lawyers and clients, and between centres. A few of these
relate to the facilitative, non-evaluative role played by the mediators in the Saskatchewan
program. A larger cluster of remarks from both lawyers and clients suggest that program
users want the mediators to take a more proactive role in working for settlement in the
session. Clients also spoke of wanting the mediator to take more steps and perhaps have
greater powers to move what is agreed in a session into formal compliance. Finally, some
clients and lawyers see the potential for the mediator to assist in setting a future timetable
for a case not resolved or partially resolved in mediation, instead of simply releasing the
parties at the end of the mandatory session.
22
i. Evaluation by the mediator
The Queen's Bench mediation program adopts an explicitly facilitative, non-evaluative
approach to resolution. This is reflected in the fact that most of the present mediators are
not legally trained. They do not give an opinion on the legal merits of the case. As one
mediator expressed this to us,
"I see my role in these files as being to facilitate, to assist people in their
communications, to poke, prod, give gentle nudges, to try to move people forward."
(pamediators)
The lawyers we spoke with appreciated that most of the present cadre of mediators were
not qualified to provide a legal evaluation, and although some questioned this these were
a small group (see below under mediator qualifications). Most lawyers appear to accept
the mediation as a purely facilitative process, thus distinguishing it clearly from the later
pre-trial. A number of lawyers commented that in relation to the present pre-trial process,
it made more sense to make mediation a distinctive and earlier process. There was no
suggestion that the mediator should act as a judge; in fact, there were many examples of
lawyers distinguishing the role of a judge from the role of a mediator. The judicial
function was seen as quite different from that of a mediator. For example ,
"Some clients won't settle unless a judge tells them that they're liable."
(clientfollow-upinterview.2 at 33)
"The pre-trial judge provides evaluation ­ it is sometimes important for the client to hear
what judge says about their case."
(lawyerfollow-upinterview.2 at 32).
In interviews with members of the judiciary, a majority (although not unanimous) view
emerged that once the action proceeds closer to the pre-trial conference stage, the benefits
of that more evaluative process tend to overtake those that might come from a later
mediation session (although this was not a universal sentiment). Judges interviewed were
consistently supportive of early mediation but saw this as a quite distinctive process that
generally should occur well in advance of pre-trial (see also "Recommendations",
below).
There were some lawyers, however, who stated that they would prefer a more evaluative
approach in mediation (for example, four of the five lawyers in saskatoonlawyersmay.1).
Others said that they could see some types of cases in which an evaluation would be more
useful than a purely facilitative approach. While these comments came from a minority,
taken with other suggestions about mediator role they suggest that more might be done to
provide counsel with choices over mediators (style, expertise, etc). This is discussed
further below under "Recommendations" at Part III.
23
ii. Mediator proactivity
We were struck by how often we heard comments that the mediator could have been
more interventionist during the mediation session (and sometimes, though less often,
after the session as well; see below). These comments focused on the level of energy,
tenacity and the expectations that the mediators placed on the parties, and particularly on
counsel.
These comments came from both lawyers and clients. From clients, they sometimes
related to how evaluative a role they expected the mediator to take and some
disappointment on that score (see, for example, reginaclientssept.2). However, clients
remarks about mediator proactivity was not restricted to providing a legal evaluation; see
the "wish list" below. From lawyers, generally these comments were separate from and
unrelated to any desire for an evaluative mediation (see discussion above).
Instead, the reservations we heard suggested a preference for a more directive style or
strategy for the mediator. This "wish list" includes:
 standing up to counsel where they are either unwilling to stay in the session or to
bargain in good faith (for example, see saskatoonclientssept.3)
 holding counsel to account where they have not exchanged adequate information in
advance to make the session constructive and worthwhile for everyone
 not letting counsel ­ or one counsel ­ dictate the tone of the meeting
 requiring counsel to answer questions and to explain / justify their positions (for
example, see reginaclientssept.1)
 working harder to keep parties at the table (for example, see reginalawyerssept.2)
 being more specific and clear about the possibility of follow-up sessions where
agreement appears close (for example, see saskatoonclientssept.1)
There were a number of comments about the general level of energy and tenacity
evidenced by the mediator or experienced by the parties. For example, "There wasn't
enough energy in that person to keep the ball rolling" (saskatoonclientsmay.1); and
"(T)hey (the mediators should be prepared to get their hands dirty"
(reginalawyerssept.2).
In summary, there was a clear sense that many lawyers and clients wished for mediators
who while not necessarily providing direction regarding the possible legal outcomes in
the case, would work hard at steering the parties towards constructive and substantive
negotiations, and would take charge where the lawyers appeared to be recalcitrant.
From the mediators themselves we heard a range of views about how proactive they felt
they should be in mediation. A number felt that it was important to give primary
responsibility to the parties themselves for resolving the matter, and this reflected how
proactive they felt they should be in the mediation session. Some of the more experienced
mediators however said that they felt comfortable being a little more "pushy", and
24
working hard to keep the parties at the table. It may be that these mediators are the
preferred choice of some lawyers who have had extensive experience at Dispute
Resolution Office.
These comments - which were noticeably widespread and consistent between lawyers
and clients - give rise to specific Recommendations regarding the role of the mediator
and appropriate training (see below at Part III).
iii. The mediator's role in finalizing settlements
One of the points of tension around the level of intervention of the mediator is their role
in the drafting of any settlement outcomes or interim agreements. Some of the mediators
we spoke with said that they were willing to help draft a summary of matters discussed
and agreed in mediation. However others said that they were not comfortable with any
role in drafting outcomes or documents that might later be used towards settlement
outcomes, and that they saw this as the responsibility of the parties themselves (for
example, see reginamediators.4). Part of this caution appears to come from a program
philosophy about handing off responsibility to the parties to use the results of mediation
as they see fit; and part may stem from the difficulties of non-lawyer mediators becoming
involved in drafting documents with possible legal effect.
Whatever the strength of these and other arguments that support minimal mediator
involvement in the drafting of settlement agreements, we can report that the "hands-off"
practice presently adopted among the majority of the mediators attracts considerable
client criticism, which may threaten the credibility of the program among some client
groups. Some clients simply cannot understand why the apparent agreements made in
mediation could not be written down - by someone, anyone ­ in order to speed the
process up after mediation. Typical of this frustration was one clients' comment that he
would like the mediator "to light a fire under the other side" (saskatoonclientssept.3 at
76). "One-shot" or first-time litigants are usually not clear whose job this is ­ their
lawyer's or the mediator's.
Some repeat clients told us that they have developed the practice of minuting the
outcomes of mediation, although this is often not an agreed and shared document (for
example, reginaclientssept.1). Some lawyers said that they have developed the practice of
writing out a memo summarizing the results of mediation and asking the other side to
review and sign this in mediation (see for example, lawyerfollow-upinterview.2,
lawyerfollow-upinterview.3). Some reported that the mediator was very helpful in
facilitating this process, and there was a general sense that the assistance of the mediator
in this regard would be welcomed, not resented. One lawyer told us that he thought that
mediators were generally "...much too cautious about involving themselves in
developing agreements." (lawyerfollow-upinterview.1 at 52-53). Many clients repeated
that they thought that a constructive enhancement to the program would be for the
mediator to routinely assist directly in minuting the outcomes of mediation (for example,
reginaclientssept.1)
25
These comments are related to further comments on compliance, discussed below at (d).
iv. Beyond facilitation
There was considerable discussion over the role that might be played by the mediator
beyond the facilitation of the mediations session itself. This might include work before
mediation and follow-up after the session had taken place. In relation to the early stages
of a litigation file this might include, for example, assisting the parties in agreeing a
schedule of productions and exchanges ahead of the mediation; relationship-building
between the parties before the mediation (which might simply mean agreeing on
information exchange (see saskatoonlawyersmay.1); and perhaps fractionating some
smaller issues that could be agreed upon and disposed of. Once mediation had taken
place, this role might involve the mediator in following up on next steps and setting a
timetable for future events (saskatoonclientssept.1).
There was also some discussion among program users of opportunities to reconvene in a
second mediation session, or to book a longer first session for a complex case. Many of
those who attended discussion groups were unaware that this opportunity was available.
There appeared among some clients to be a measure of regret that the mediator did not
stay involved in the case to ensure that a second meeting took place (for example
clientfollow-upinterview.1).
In the September discussion groups, we conceptualized these ideas as a "case manager"
role for the mediator. Clients were generally enthusiastic about this suggestion, feeling
that mediation often left too many "loose ends" (see also discussion below on
compliance). However among lawyers, the suggestion of a "case manager" role for the
mediators was greeted with much less enthusiasm. Comments included concern for
adding another level of bureaucracy to the litigation process; a sense that mediators had
less authority and credibility than judges in setting case management schedules; and a
concern that mediators would need greater knowledge of legal procedures than some
presently possessed in order to carry out this task properly (see for example,
reginalawyerssept.1, reginalawyerssept.4). The mediators themselves did not welcome
the idea either, and several suggested that they saw their role quite differently to this, and
that case management was "treating the symptoms not the causes of the conflict"
(mediator.8 at 140).
It may be that part of this reaction can be explained by the assumption that a role which
we were describing as a "case manager" was perceived by lawyers to be as the same or
similar to a judicial case management role. This was not our intent and clearly the role of
the judge as case manager is quite distinct. When this was clarified, a number of lawyers
stated that if the mediator were to be charged with the responsibility of engaging the
parties in a general discussion over their next steps, and a greater degree of proactivity
over ensuring that information was exchanged ahead of time, this additional aspect of the
mediator's role could be very useful indeed. A number of mediators also described
themselves as already informally playing this role (for example, mediator.5, mediator.7).
The possible enhancement of the mediator's role in these ways was also raised with
26
judges in our discussions with them. Those members of the judiciary with whom we
spoke were very supportive of this idea.
d. Compliance
There were many complaints from personal litigants about would-be agreements that they
saw as falling apart from lack of follow-through after mediation. Many of these clients
were angry about what they saw as a process "without teeth" (for example, see
reginaclientssept.1). One client described this as "a disconnect between undertakings in
the session and what actually happened". (reginaclientssept.1 at 33) Another client said
that his experience of non-compliance with an agreement he believed had been made in
mediation made him feel like he had been "screwed" by the mediation process
(reginaclientssept.4 at 51).
Many lawyers and institutional clients also recognized this difficulty, but their comments
were more practical. Several suggested that there should be written undertakings made at
or immediately following mediation which in the event of non-compliance could then be
raised in future proceedings. One lawyer said that his approach to the outcomes of
mediation was exactly the same as pre-trial ­ he took a list of possible undertakings with
him to the session, which could be amended as necessary, and if the negotiation was
successful would ask the other side to sign off on these, there and then (see lawyerfollow-
upinterview.3).
More attention to recording the outcomes of mediation would both enhance the
legitimacy of the process, and reduce the damage that these client experiences may do to
the credibility of mediation. This issue is closely related to the mediator's role in
finalizing settlement, discussed above at (c)(iii). It is further addressed below under
"Recommendations."
e. The Role of Counsel
Many clients appear to be highly satisfied with the role played by their lawyers in the
mediation process. We were told by many clients that their lawyers did an excellent job
of preparing them, representing them in the mediation session, and counseling them on
settlement options. Several clients noted that the commitment of their lawyer to use the
mediation process constructively changed the whole experience for them. For example,
"In the first few mediations, our lawyer told me to speak only when I was asked a
question, and the mediation was mostly an exchange between the lawyers. Then the city
solicitor changed. He told me that mediation was really for the clients to talk, not the
lawyers ­ that we can use it to do the PR thing and if it's a legitimate case say sorry ­ and
that he would take care of the legal issues. Now my feeling about mediation has totally
changed."
(saskatoonseptclients.3 at 20-22)
27
However, we also heard a significant amount of negativity expressed by some clients
about the role played by their lawyers in the mediation process. These comments
highlighted in particular a failure to prepare the client for mediation; a failure to prepare
the file for mediation for example by exchanging or obtaining information from the other
side; a pessimistic outlook on mediation ("it's going to be a waste of time"); and the
tendency of some lawyers to "muzzle" their clients (i.e. to instruct them not to talk in the
mediation session) (for example, see clientfollow-upinterview.3).
It is important to note that these negative comments about the behavior of some counsel
came from both clients and lawyers. In fact, these comments were largely the same from
lawyers and clients, although it would be fair to say that clients were often more
forthright in their criticisms. It is also fair to note that in some cases lawyers may take
the view that mediation is not going to be helpful for moving this case along, and
therefore choose not to spend time preparing for the session. However, if this is the case
it is incumbent on these lawyers to explain this to their clients, some of whom do not
appear to fully understand the reasons for their lawyer's attitude towards mediation.
Lawyers themselves were often critical of the approach taken by their colleagues who
either failed to prepare or treated the mediation as simply an opportunity for informal
examinations; one lawyer suggested that "(T)here should be some way to `de-lawyerize'
the process'." (saskatoonlawyersmay.1 at 34) . Another candidly acknowledged
"Lawyers sometimes have a vested interest in complicating things, and delaying the
resolution of cases" (lawyer email communication.1).
There was widespread acceptance among both lawyers and clients that counsel's attitude
towards mediation would largely determine how the mediation would go, and how useful
and constructive it would be ­ or not. We heard a number of tales of lawyers who had not
prepared their clients in any way for what to expect in mediation (see for example
paclientsept.2). This appeared to be a consequence of the lawyer's assumption that there
was no point in preparing for mediation since the process would not work for this case.
These clients suggested that their lawyers' "default position" was not to prepare or take
mediation seriously, instead of a default (more appropriate and courteous in a bilateral
matter) of treating mediation as a serious settlement opportunity, in all but special
circumstances. One large institutional client described the contrast between his
experience with a lawyer who was not interested in mediation, compared with a new
lawyer for his organization who regarded mediation as important and useful; as a result,
he "had a completely different feeling about mediation now" (saskatoonseptclients.3 at
14). The negative attitude of some lawyers also stands in contrast with those lawyers who
told us that experience had taught them that the results of mediation not infrequently
surprised them, and that they had learned that it was sometimes hard to anticipate in
advance whether it would be useful in this case, or not (in other words, it was almost
always worth trying) (see above at Part II(1)(c)).
A couple of our client discussion groups were largely preoccupied with negative
comments about lawyers in the process, while the clients were positive about the program
itself (for example, see the discussion in saskatoonclientsmay.1). Several clients in this
28
group expressed the view that in hindsight they believed that they would have been better
off coming to mediation without their lawyer. Some reasoned that attending without
counsel ­ but with access to counsel for advice if a settlement emerges ­ would be a
better option than attending with a lawyer who was neither prepared nor committed to
making mediation work (see also paclientssept.2). This would at least avoid their paying
the lawyers fee for attending at mediation.
Negative comments from lawyers about their colleagues were often framed in terms of an
absence of "good faith" in entering the mediation process willing to disclose relevant
information and genuinely searching for a solution. A number of lawyers expressed high
levels of frustration to us about the likelihood that they prepare conscientiously for
mediation, bring their client, only to be confronted by a lawyer on the other side who was
not willing to bargain openly or in good faith.
We asked lawyers for their reaction to the possibility of a "good faith" rule for the
program. Other jurisdictions in North America, including the farm debt mediation
program in Saskatchewan, have a rule that enables the mediator to impose sanctions if
s/he believes that one or other party has not come in good faith, adequately prepared and
ready to bargain seriously (see generally Lande, 2002). However this idea was not well
received, with many lawyers telling us that they were adverse to more "rules" (for
example see palawyerssept.1, reginalawyerssept.4).
Instead most lawyers expressed a strong preference for strategy of further lawyer
education, combined with strong leadership from the Bench, to overcome this problem. A
focus on continuing legal education and the support of the Bench for court-connected
mediation may also prove to be the most effective and the most easily accepted means of
addressing the problem of a minority group of lawyers coming to mediation without
having adequately prepared either themselves, or their clients (Kovach, 1997). Studies
elsewhere have highlighted the importance of establishing a culture of legitimacy for
mediation, ensuring that lawyers take the process seriously and that a norm of good faith
and adequate preparation takes hold within the community (exemplified by the Ottawa
experience, which was backed by strong advocates from the Bench and in the Court; see
Macfarlane 2002).
The judges interviewed for this evaluation did indicate their clear support for the
mediation program, and this may need to be utilized more effectively than at present. It
was also notable that judges made the comment in interviews that they encountered
similar dynamics ­ some lawyers' resistance to a settlement oriented process, the failure
of some counsel to adequately prepare for the process - in pre-trial conferences (although
perhaps to a lesser degree).
A possible education and leadership strategy is outlined further below under
"Recommendations".
29
3. Other Observations
Several other important themes emerged from our discussions with lawyers and clients
which are reported here.
a. The use of conference calls
We heard complaints from five lawyers who wanted greater flexibility in substituting
attendance at mediation with conference calls for out-of-province clients. However, in the
course of these discussions we also heard from other lawyers that conference calls would
in their opinion reduce the usefulness of mediation; " you need to have a human face on it
in order to facilitate resolution" (saskatoonlawyersmay.1 at 97). Several lawyers told us
that they resented the request of the other side (often large insurers) to meet by
conference call instead of sending a representative to mediation, and that they were happy
for the Dispute Resolution Office to generally insist on attendance and participation.
We have concluded that while some lawyers are frustrated over the reluctance to allow
conference calls, that the present approach is treating each request on its merits and
encouraging face-to-face meeting is broadly supported by all but a small number of
counsel.
b. Access to extended mediation sessions and subsequent sessions
We heard from a minority of lawyers that they were aware that they could request both a
longer session (regular mediation sessions are scheduled for two hours); and further
follow-up sessions to finalize agreements or take negotiations another step forward.
Many other lawyers in these discussion groups expressed surprise at this ­ this does not
appear to be widely known. Some of these lawyers said that they would sometimes want
to avail themselves of a second session, and/or anticipate the need for a longer first
session.
Among clients, there were some comments about a follow-up session being discussed at
the end of their mediation session, but not materializing. These clients were usually
unclear over who should take this initiative, although a few wished that the mediator
would. The mediators themselves seemed to assume that a second session was not widely
desired (for example see mediatorsregina 2). Other mediators told us that they would like
a stronger and clearer role in relation to encouraging parties to return for a second session
where real progress was being made (see saskatoonmediatorsmay.45678).
If these services are to be made available informally, it seems appropriate now to
formalize their availability to all program users. See also "Recommendations", below at
Part III.
c. Information for the parties
The Dispute Resolution Office produces explanatory literature for clients which offers a
summary of what clients should expect in mediation, and answers some potential user
30
questions about the program. However, very few of our client respondents indicated that
they had seen this information. For some (see below), this serves only to exacerbate a
feeling of strangeness and lack of preparation in advance of mediation. One client stated
that he would have appreciated more information about the procedural dimensions of
mediation ­ precisely the type of information that the Dispute Resolution Office materials
do present (reginaclientsept.2 at 45-46). Another told us that he was concerned about
how confidentiality applied to what was discussed in mediation ­ a question which went
unanswered in this case. Another client said that her lawyer told her to expect something
along the lines of a hearing for discovery (reginaclientsmay.1 at 90).
Many clients, of course, had been satisfactorily briefed by their lawyers and were not
disadvantaged in any way by having not seen the literature provided by the Dispute
Resolution Office. However, as a general principle, it is important to try to get this
explanatory information into the hands of the clients to whom it is targeted. This ensures
at least a baseline of information which counsel can, and should, then supplement in
discussions with his or her client. See also "Recommendations", below at Part III.
d. "Culture change"
Most of the lawyers we spoke to, including those who were more negative about
mediation, acknowledged a significant shift in the attitude of the Saskatchewan Bar
towards mediation in the last 8 years. In addition to identifying a cultural change within
the Bar itself ­ described by one respondent as originally "dragged into this kicking and
screaming"(lawyerfollow-upinterview.2) - in the degree of openness and receptivity
towards mediation (including mandatory mediation), a number of lawyers gave us
personal accounts of what was sometimes described as their "conversion" (for example,
lawyerfollow-upinterview.1, lawyerfollow-upinterview.3, palawyersept.2, lawyeremail. 1,
reginalawyerssept.1 among many). These lawyers all described their initial reactions to
the introduction of mandatory mediation as highly skeptical and/or critical. However they
told us that they had become gradually convinced of its real worth in at least a significant
number of cases. Even those who were more personally cautious ­ broadly supportive but
entirely convinced - described a significant shift of attitudes among members of the Bar.
As one lawyer put it, "mediation is no longer a dirty word" (reginalawyerssept.2 at 56).
Some of those counsel who described themselves as having embraced the principles of
interests-based mediation were relatively new practitioners, who had been exposed to
some ADR education in law school (see below). Many others however were more senior
practitioners who explained a shift in their strategy and attitudes towards settlement as
the results of pragmatism and experience. As one experienced lawyer put it,
"(W)hen you practice long enough, you'll understand there are some brilliant legal
arguments that are not worth making".
(saskatoonlawyersmay.1 at 189-190)
Mediators also told us that they had seen signs of real change in the attitude of the Bar.
Several spoke of individual lawyers whose commitment to mediations they oversaw had
changed radically over the past few years. This change was attributed by the mediators to
31
a range of possible causes, including enhanced law school education on mediation, and
the recent growth of collaborative family lawyering and associated trainings within the
province.
e. Implications for legal education
There was widespread agreement on two issues : that legal education in the province has
made significant strides towards ensuring that new law school graduates had a better
grasp of the essentials of interests-based bargaining and mediation; and that there
remained much to be done still in this area to adequately equip lawyers to be as effective
as possible in these processes
Many of the lawyers with whom we spoke suggested that an educational strategy was
preferable to a rule-based approach to addressing challenges with program structure and
design (Kovach, 1997). See also "Recommendations", below at Part III.
4. Quantitative Data Analysis
Efficiency questions inevitably preoccupy program planners and evaluators. Whereas the
Saskatchewan Queen's Bench program was not introduced primarily to enhance case
processing efficiency ­ unlike Ontario and British Columbia where the civil justice
system has faced a significant backlog of cases and delays in resolution ­ it is important
that the program can be shown to be performing to an acceptable standard of efficiency.
Program efficiency is generally measured by examining the cost and time involved in
resolving the dispute, both from the parties perspective (legal costs, delays, other
commercial and personal costs) and more generally from the perspective of the justice
system itself (court staff time, processing costs, judge time and so on). While there may
be some collateral benefits for those cases that do not settle in mediation (see above at
Part II(1)(e)), the first question to be answered is how many cases are actually resolving
in mediation, or as a result of mediation.
a. What are the outcomes of mediation?
Dispute Resolution Office mediators currently record one of five outcomes for mediation
immediately after the session has ended.
Category 1 Agreement reached in mediation
Category 2 Agreement likely
Category 3 Further negotiations pending
Category 4 Proceed to court
Category 5 No interaction (proceed to court)
The following tables set out case outcomes as reported by mediators for the three years
1999/2000, 2000/2001, and 2001/2002.
32
Table Set Two Reported outcomes in all case categories : by year 1999-2002
Table 2(A) Recorded outcomes 1999/2000
Outcome Regina Saskatoon Prince
Albert
Swift
Current
Totals
1 38 12% 52 14% 6 15% 6 24% 102 13%
2 57 18% 71 19% 10 24% 5 20% 143 19%
3 142 44% 137 37% 22 52% 8 32% 309 41%
4 72 22% 75 20% 1 2% 6 24% 154 20%
5 14 4% 38 10% 3 7% 0 0% 55 7%
Totals 323 100% 373 100% 42 100% 25 100% 763 100%
Pie Chart 2(A) Reported outcomes 1999/2000
13%
19%
41%
20%
7%
Category 1
Category 2
Category 3
Category 4
Category 5
Table 2(B) Reported outcomes 2000/2001
Outcome Regina Saskatoon Prince
Albert
Swift
Current
Totals
1 48 13% 53 14% 14 22% 6 33% 121 15%
2 55 15% 48 13% 17 26% 1 6% 121 15%
3 148 40% 140 38% 23 35% 8 44% 319 39%
4 102 28% 109 29% 11 17% 3 17% 225 27%
5 17 4% 23 6% 0 0% 0 0% 40 4%
Totals 370 100% 373 100% 65 100% 18 100% 826 100%
33
Pie Chart 2(B) Reported outcomes 2000/2001
15%
15%
39%
27%
4%
Category 1
Category 2
Category 3
Category 4
Category 5
Table 2(C) Reported outcomes 2001/2002
Outcome Regina Saskatoon Prince
Albert
Swift
Current
Totals
1 62 18% 50 13% 15 18% 4 23% 131 16%
2 48 14% 44 11% 11 13% 2 11% 105 13%
3 118 35% 138 35% 21 25% 7 39% 284 34%
4 90 27% 138 35% 36 42% 5 28% 269 32%
5 18 5% 24 6% 2 2% 0 0% 44 5%
Totals 336 100% 394 100% 85 100% 18 100% 833 100%
34
Pie Chart 2(C) Reported outcomes 2001/2002
16%
13%
34%
32%
5%
Category 1
Category 2
Category 3
Category 4
Category 5``
Over the past three years, the rate at which agreements have been reached in mediation
(category 1) across all four centres has remained fairly consistent. This was 13% in
1999/2000; 15% in 2000/2001; and 16% in 2001/2002. In Regina and Saskatoon there are
some slight but insignificant differences in settlement rates and reported outcomes from
year-to-year. Where variations do appear form year-to-year between the smaller centers
­ for example, Swift Current reports a 33% agreement rate in 2000/2001, but only 24% in
1999/2000 and 23% in 2001/2002 ­ these figures should not be taken as conclusive of
any significant trend because of the very small volume of cases involved. (The two
smaller centres represent a very small fraction of the overall caseload. In 1999/2000 the
major centers of Regina and Saskatoon accounted for 91% of the total number of
mediations conducted in the province; in 2000/2001 90%; and in 2001/2002 88%.)
These figures also show a similar consistency in outcomes reached between the four
centers. The percentile of settled cases recorded appears as slightly higher at the smaller
center of Swift Current ­ and to a lesser extent at Prince Albert. However, a small group
of successful or unsuccessful cases may affect percentiles in centres with a small volume
of cases.
35
Table Set Three: All programs, comparison of reported case outcomes in all case
categories, 1999-2002 : by reported outcome
Table 3(A): Agreement Reached
Year Regina Saskatoon Prince Albert Swift Current
1999/2000 12% 14% 15% 24%
2000/2001 13% 14% 22% 33%
2001/2002 18% 13% 18% 23%
Table 3(B): Agreement Likely
Year Regina Saskatoon Prince Albert Swift Current
1999/2000 18% 19% 24% 20%
2000/2001 15% 13% 26% 6%
2001/2002 14% 11% 13% 11%
Table 3(C): Further Negotiations
Year Regina Saskatoon Prince Albert Swift Current
1999/2000 44% 37% 52% 32%
2000/2001 40% 38% 35% 44%
2001/2002 35% 35% 25% 39%
Table 3(D): Proceed to Court
Year Regina Saskatoon Prince Albert Swift Current
1999/2000 22% 20% 7% 0
2000/2001 28% 29% 17% 17%
2001/2002 27% 35% 42% 28%
Table 3(E): Total Bust
Year Regina Saskatoon Prince Albert Swift Current
1999/2000 4% 10% 7% 0
2000/2001 4% 6% 0 0
2001/2002 6% 6% 2% 0
36
i. How typical is Saskatchewan's rate of settlement?
In comparing Saskatchewan's settlement rate in mandatory mediation with other
programs, it is contentious whether the point of comparison should be with the total
Category 1 cases (16% for the year 2001/2002) , or with all cases reported as either
settled or "likely to settle" (Category 2) (29% for the year 2001/2002). It is also arguable
that some of the Category 3 ("further negotiations") cases may also proceed to settle
shortly after and as a result of mediation (see also below).
If cases reporting Category 1 outcomes ("full settlement") are assumed to be the sum
total of settled cases in the Saskatchewan program, this rate of settlement appears to be
somewhat lower than other, similar programs report. For example, the most recent
evaluation (Hann & Associates 2001) of the Ontario mandatory mediation program (Rule
24.1 Ontario Rules of Civil Procedure RRO 1990, reg 194) reported a full settlement rate
in Toronto of 38% and an additional partial settlement rate of 21% ; and in Ottawa 41%
of cases settled in full and 13% partially settled. However, the 10 day time lag in filing a
report (in the evaluation, mediators were asked to respond to whether the case had settled
within 7 days of mediation) may mean that this data captures some equivalents to
Saskatchewan's category 2 ("likely to settle") cases. If Category 2 cases are added in to
Saskatchewan's settlement rate, (making it 29% in 2001/2002; see above), the figures
become more comparable between the two programs, although the settlement rate
remains still considerably higher in Ontario.
The significance of Ontario as a comparator is that its program is in many respects very
similar to the Saskatchewan program. It is an opt-out program (i.e. exemptions have to be
requested) and it occurs early in the litigation process (generally before discoveries).
However, there are some differences between the two programs which may account for
the difference in settlement rates, including the potential for selection of a mediator from
a large pool and the different method of reporting outcomes (below). In addition, Ontario
requires the parties to exchange statements before mediation outlining the issues in
dispute, although it would appear that in practice this appears to add little to levels of
preparedness (recognized as a problem in some Ontario cases (Macfarlane, 2002), just as
in some cases in Saskatchewan; see the discussion above at Part II (2)(e).
Looking beyond Ontario for possible program comparators, a number of additional
variables intrude. For example, many US programs are voluntary (characterized as "opt-
in" not "opt-out" as in Ontario and Saskatchewan), and this may account for their often
higher rates of settlement. For example, the Illinois Judicial Circuit reports a settlement
rate in five circuit courts (statistics variously collected from 1993 to 2003) as high as
60% (www.caadrs.org/statistic/reports). Clarke et al (1995) report a settlement rate of
44% in North Carolina. Both of these programs are opt-in programs.
However, there are apparently exceptions to this trend also. Other evaluations of
voluntary programs report much lower rates of settlement. The RAND Report of 1997
which examined settlement in 20 judicial districts in the United States found a settlement
rate in (voluntary) court-referred mediations of just 21% (Kakalik et al 1997) (note
37
however that this study has been widely criticized as based on a very small sample of
mediated cases).
Arrangements for lawyers fees in the US (for example whether undertaken on a
contingency basis) may also affect settlement levels. Such comparisons may also be
affected by differences in reporting practices; for example in Ontario, unlike
Saskatchewan where the mediator's report is made immediately after the conclusion of
the mediation session, the mediator has up to 10 days to file a report after the conclusion
of the mediation, He or she may have been able to follow-up with the parties during that
time to ascertain progress towards proposed outcomes. Ontario, along with a number of
other US jurisdictions, also reports both "full settlement" and "partial settlement" (of
some but not all issues).
Typically, family mediation programs reveal higher rates of settlement than civil non-
family programs (Pearson, 1982). In a recent study of voluntary court-connected
mediation in Georgia which included both family and other civil cases, family cases
settled at a higher rate (35%). Settlement rates in contract and in tort cases (each 21%)
were far more comparable to the Saskatchewan figures (Hartley, 2002).
In conclusion, it is important to recognize that so many variables exist among court-
connected mediation programs that direct comparison may be unrealistic. Nonetheless, it
would be safe to say that typically settlement rates in civil non-family court-connected
programs range from one third to two thirds (Wissler, 2002). This would place the
Saskatchewan settlement rate "in the ballpark" if Category 1 and 2 cases added together
are assumed to represent the overall rate of settlement. This proportion of settled cases
might be further swelled if some Category 3 cases could be shown to settle as a result of
mediation.
However, because of the manner in which data on outcomes is presently collected in
Saskatchewan, this assumption bears further examination. In common with many other
programs, mediators are given the responsibility of reporting actual or anticipated
outcomes. This raises concerns about the accuracy of this data. It must be emphasized
that there is no suggestion here (and we heard none from any parties) that mediators were
deliberately misrepresenting outcomes. Instead, the reporting of anticipated results
represents a data management challenge
ii. How accurate are reported outcomes?
The 2001/2002 Audit
The decision to implement a random audit of case outcomes in Categories 1 and 2 was
made on the advice of the Evaluation Advisory Committee at an early stage of the
evaluation. At present, the outcomes of mediation are recorded by the mediators
themselves, without independent verification by the parties. Concerns about reporting of
outcomes have focused in particular on the prediction that an agreement would likely
38
follow mediation (Category 2), and this was the focus of this limited audit. Further
studies might usefully track outcomes in other categories (see discussion below).
In the absence of any formal requirement (either in Saskatchewan or in any other
Canadian province) to file notice of settlement and withdrawal, the only way to ascertain
the accuracy of both Category 1 and Category 2 record was to conduct a small random
audit of actual outcomes. This task was taken on by the Dispute Resolution Office, and
the returns ­ which are analyzed below - forwarded to the Evaluator.
Category 1 cases
The Dispute Resolution Office sent out surveys to counsel on all cases that had recorded
either Category 1 outcomes (agreement reached in mediation) during the year 2001/2002
in Regina, Saskatoon and Prince Albert (a total of 126 cases). Counsel was asked to
respond to the following two questions:
2. If there was a settlement reached in mediation, did this get translated into
formal Minutes of Settlement or a Settlement Agreement? If not, what
happened?
3. To the best of your knowledge, was the agreement reached in mediation
complied with by the parties?
Results
70 surveys were returned (an excellent return rate of 55.5%). Of these 70 returns, 2 stated
that they could provide no further information. Of the remaining 68, 59 (87%) stated that
formal minutes were executed at or shortly after mediation. The 9 cases which did not use
formal signed minutes of settlement reported nonetheless that the parties had agreed on
an outcome between themselves and in none of these cases were there any reported
compliance problems. In two cases, minutes had been drawn up but one party (the
defendant in each case) had refused to sign these. Unsurprisingly, in each of these two
cases there had been compliance issues. Two other cases ­ for a total of four ­ reported
compliance problems. One case reported that compliance was partially complete but
ongoing. Compliance was complete therefore in 97% of cases.
Analysis
These results appear to substantiate the accuracy of the Category 1 record. They also
indicate that in most cases, the parties are executing settlement agreements ­ but also that
where this formality is dispensed with, there is rarely a problem. Compliance appears to
be high. There is no reason to believe that compliance with settlement agreements arising
out of mediation is any different from compliance where settlement agreements are made
outside mediation.
39
Category 2 cases
The Dispute Resolution Office sent out surveys to counsel on all cases that had recorded
either Category 2 outcomes (agreement likely following mediation) during the year
2001/2002 in Regina, Saskatoon and Prince Albert (a total of 106 cases). Counsel was
asked to respond to the following three questions:
1. Was there ultimately a settlement in this case?
2. To what extent was the settlement a result of/ influenced by the discussions that
took place in mediation?
3. Approximately how long after mediation and at what stage of the case did
settlement take place?
Results
35 surveys were returned (a respectable return rate of 33%). Of these 35 returns, 3 stated
that they could provide no further information. Of the remaining 32, 14 (44%) stated that
no agreement had in fact been reached in this case. A few of these commented that
mediation had been less than helpful. For example,
"Mediation was ineffective. Matters appeared more inflamed following the session."
"The mediation process was meaningless."
A further 14 (44%) stated that agreement had been reached which was significantly or
"somewhat" (three of 14) enabled by the discussions in mediation. Several respondents
pointed to the role of mediation in enabling critical documentary and other information
exchange. Some of these responses explained the impact that mediation had on moving
the settlement discussions along in the following terms:
"The mediation was really helpful in understanding the issues"
"The mediation really helped the parties appreciate that it is the process they would
like to use to settle their case"
"The case had been stalled for 9 years. It was resolved as a direct result of the
mediation."
"Hard to say...the mediation was in this instance helpful in bringing all parties
together in a non-confrontational atmosphere which I expect promoted settlement."
"To what extent...? 100%"
In contrast, four respondents (including one counsel on a case otherwise reported by the
other side as being settled as a result of mediation) stated that while agreement was
40
reached it was not as a result of mediation. One counsel stated that "it was (as a result of
the) co-operation of counsel.". A second stated his view that "(S)ettlement was not in my
opinion influenced by the discussions that took place at the mediation to any significant
extent." The third stated "I do not know whether (my client) is of the view that the
mediation process helped or not. I have not discussed it with him." The fourth described
the mediation as "rancorous".
Of the 18 cases which did settle, 15 provided information on the timing of settlement.
Eleven of these cases settled within weeks or a few months of mediation, and before any
other legal steps were taken (e.g. discoveries). A smaller group (4 cases) were not
finalized until 12 months or later. This longer time period did not seem to clearly relate
to the usefulness of mediation but rather to the practicalities of finalizing documentation,
exchanging necessary information etc.
Analysis
These results suggest that the prediction that an agreement is "likely" following
mediation is only accurate about half the time. While Category 2 cases are not presented
as having been settled by Dispute Resolution Office, there is certainly a sense created that
these cases will probably ­ although not certainly - settle shortly after mediation. A figure
of 50% may be too low to justify this designation.
There are a number of very strong and moderately strong statements in this part of the
survey about the positive influence of mediation on settlement discussions. The volume
of these comments clearly outweighs negative comments about mediation (examples
above).
Nonetheless there is a need to ensure that the Category 2 rating is attributed only when
there is adequate information to substantiate this reporting status. This may mean that
reports should not be completed immediately other than in situations where there is a
clear outcome i.e. an agreement reached and documented in some fashion in mediation,
or a "total bust" where parties declare the negotiations to be over. In other cases a follow-
up two or four weeks later for the purposes of record keeping may be more appropriate
and may achieve greater degree of accuracy.
Having considered these results, modifications to the present system of reporting
outcomes are described under "Recommendations" at Part III.
It should also be noted that a future study could usefully examine the outcomes of
Category 3 cases (negotiations continuing). It seems likely that further settlements may
arise in that group which can be attributed to mediation. The best way to ascertain this
would be to undertake an audit similar to that undertaken here in relation to Category 1 &
2 cases.
41
The 2001/2002 Status Check
Another means of checking on reported outcomes is to access what information exists in
the court record on each case in each reporting category. A year end Status Check was
carried out for the year 2001/2002 in Saskatoon and Prince Albert, and for each month of
this same period in Regina. Each case was checked to ascertain (i) whether a notice of
discontinuation had been filed (ii) whether there had been any other or further court
activity on the file during this period, which would be a minimum of 6 and a maximum of
16 months after mediation.
Since there is no formal requirement of the filing of a notice of discontinuation in
Saskatchewan (in common with other Canadian provinces), this data is at best an
incomplete picture of those cases that have settled and withdrawn from litigation. We
also know that in North American civil justice systems most (in the region of 95%;
see Galanter & Cahill, 1994; Trubek, Sarat, Felstiner, Kritzer & Grossman, 1983)
cases settle before trial. Therefore data showing discontinuation and/or no further activity
on the file is most useful where it can show patterns which contrast with a control group
(e.g. that discontinuation occurred significantly earlier in the mediation stream than in the
litigation stream). Such a control group was not available here since all cases in these
three centers are referred to mandatory mediation.
Nonetheless, the Status Check reveals a striking number of cases which have been
recorded as showing "no further activity" following mediation. No further activity
implies that the matter had resolved, and without further recourse to the court via motions
activity or discoveries. It is important not to overstate the significance of this data ­ it is
impossible to conclusively assert that cases in which there was "no further activity" or
which filed a notice of discontinuation settled as a result of mediation. In order to
demonstrate this causal connection it would be necessary to communicate directly with
the parties, as in the audit process above. However, these figures are suggestive of the
impact of mediation. This is especially so where there was no further activity, and/or
discontinuation took place within a few months of the date of mediation.
Table Set Four: Status Checks, 2001/2002
Table 4(A): Prince Albert, Status 6-16 months following mediation
The results of a Status Check on a total of 79 files during the period April 1, 2001, to
March 31, 2002 showed almost 60% of Category 3 cases (22 files) and 45% of Category
4 files recorded no further activity following mediation.
Code 1 ­ Agreement Reached ­ 13 Files
3 Nothing Further 23.0%
6 Discontinuance/Settlement 46.2%
4 Other Court Action 30.8%
42
Code 2 ­ Agreement Likely ­ 11 Files
7 Nothing Further 63.6%
1 Discontinuance/Settlement 9.1%
3 Other Court Action 7.3%
Code 3 ­ Further Negotiation ­ 22 Files
13 Nothing Further 59.1%
2 Discontinuance/Settlement 9.1%
7 Other Court Action 31.8%
Code 4 ­ Proceed to Court ­ 31 Files
14 Nothing Further 45.2%
4 Discontinuance/Settlement 12.9%
13 Other Court Action 41.9%
Both the Category 5 files ("total bust") continued to court action.
Table 4(B): Saskatoon, Status 6-16 months following mediation
In Saskatoon, with a much larger number of files (393), quite similar patterns are
apparent in the large numbers of Category 3 & 4 cases which record no further activity on
the file following mediation.
Code 1 ­ Agreement Reached ­ 50 Files
18 Nothing Further 36.0%
27 Discontinuance/Settlement 54.0%
5 Other Court Action 10.0%
Code 2 ­ Agreement Likely ­ 39 Files
25 Nothing Further 64.1%
9 Discontinuance/Settlement 23.1%
5 Other Court Action 12.8%
Code 3 ­ Further Negotiation ­ 142 Files
72 Nothing Further 50.7%
20 Discontinuance/Settlement 14.1%
50 Other Court Action 35.2%
43
Code 4 ­ Proceed to Court ­ 138 Files
73 Nothing Further 52.9%
12 Discontinuance/Settlement 8.7%
53 Other Court Action 38.4%
Code 5 ­ No Interaction ­ 24 Files
7 Nothing Further 29.2%
6 Discontinuance/Settlement 25.0%
11 Other Court Action 45.8%
Table 4(C): Regina, Status 6-18 months following mediation
Finally, the Regina cases (316 files over this period) were subject to the same status
checks over a period ranging from 6 ­ 18 months following mediation. The Regina cases
show slightly lower, but still significant numbers of files recording no further activity
following mediation.
Code 1 ­ Agreement Reached ­ 57 Files
16 Nothing Further 28.1%
33 Discontinuance/Settlement 57.9%
8 Other Court Action 14.0%
Code 2 ­ Agreement Likely ­ 38 Files
15 Nothing Further 39.5%
13 Discontinuance/Settlement 34.2%
10 Other Court Action 26.3%
Code 3 ­ Further Negotiation ­ 113 Files
49 Nothing Further 43.4%
20 Discontinuance/Settlement 17.7%
44 Other Court Action 38.9%
Code 4 ­ Proceed to Court ­ 91 Files
34 Nothing Further 37.4%
11 Discontinuance/Settlement 12.1%
46 Other Court Action 50.5%
Code 5 ­ No Interaction ­ 17 Files
44
5 Nothing Further 29.4%
5 Discontinuance/Settlement 29.4%
7 Other Court Action 41.2%
iii. Are outcomes significantly affected by case type?
Efforts elsewhere to establish statistically significant relationships between case type and
the likelihood of settlement to case type have largely proved to be fruitless (see for
example, Wissler, 2002). In Canada, there is some work that supports the thesis that
wrongful dismissal cases have a slightly higher chance of settlement in mediation
(Macfarlane, 1995, Hann et al, 2001). However, research also indicates that case type
settlement patterns may also vary between different cities and different legal cultures
(Hann et al, 2001, Macfarlane, 2002; see also further the discussion below under
"Malpractice"). While program planners would welcome the opportunity to introduce
screening based on case type, experience suggests that case type is not a major predictor
of outcome in mediation. Other factors such as the experience of the mediator (Brazil,
1999) and the predisposition of the parties (especially the distance between their initial
positions; Wissler 2002) appear to be much more significant.
I. Contracts, Personal Injury and Wrongful Dismissal cases
Nonetheless, it is important to examine the Saskatchewan data from the perspective of
case type analysis in order to ascertain whether any patterns emerge. In common with
other civil jurisdictions, Saskatchewan differentiates between case types by using a small
number of very broad categories. In Saskatchewan these classifications are Contracts;
Personal Injury; Wrongful Dismissal; Malpractice; and "Other". At the same time as
these case types appear very broad, a further problem for data analysis is the very small
number of cases in some of these categories (especially Malpractice) ­ along with the
difficulty of drawing any conclusions from the category defined as "Other" (including
estates and probate, residential schools cases, property disputes and a myriad of other
matters). For these reasons, the Malpractice and the "Other" categories have not been
included in the analysis below.
We tried to establish whether these distinctions made any significant difference to the
rate at which cases resolved in mediation. The tables below record outcomes in the case
categories of contracts, personal injury and wrongful dismissal.
Some caution is advised in the interpretation of these results. The only case type which
produces significant numbers of cases on which to base a reliable analysis is the
Contracts group. In Regina and Saskatoon between 190-230 Contracts files are mediated
each year. Even in these two larger centers, the number of Personal Injury files mediated
annually is less than 45, with Wrongful Dismissals lower again ­ around 30 files per year
in each site. Numbers are much lower again in Prince Albert. As a result of these very
small numbers, minor fluctuations in settlement levels should not be taken as significant.
With this small volume of cases in each case type, it would take only a small group of
cases ­ for example eight suits filed for personal injury against a manufacturer ­ which
45
either all settled or all failed to settle to significantly affect the overall settlement rate for
that case type.
Second, these case type records were extracted and collated manually. While every care
was taken to ensure that all records were pulled and that manual counting was accurate,
without a computerized record it is not possible to state definitively that all records were
included in the manual count. Note that where "0" is entered, this means that no cases in
this category were found with the stipulated outcome from the data available (rather than
0%).
Table Set Five Case type data 1999-2002 : by reported outcome
Table 5(A) : Agreement reached
Regina Saskatoon Prince Albert
99/00 00/01 01/02 99/00 00/01 01/02 99/00 00/01 01/02
Contract 17% 20% 25% 18% 21% 17% 27% 20% 27%
Personal
injury
11% 10% 10% 2% 7% 9% 20% 17% 10%
Wrongful
dismissal
10% 0 0 16% 17% 21% 33% 20% 11%
Table 5(B) : Agreement reached plus Agreement Likely
Regina Saskatoon Prince Albert
99/00 00/01 01/02 99/00 00/01 01/02 99/00 00/01 01/02
Contract 25% 34% 41% 35% 29% 31% 38% 25% 34%
Personal
injury
24% 30% 22.5% 18% 17% 25% 40% 33% 20%
Wrongful
dismissal
27% 24% 0 24% 28% 31% 50% 40% 22%
46
Table 5(C) : Proceed to Court plus Total Bust
Regina Saskatoon Prince Albert
99/00 00/01 01/02 99/00 00/01 01/02 99/00 00/01 01/02
Contract 25% 27% 28% 27% 31% 40% 8% 45% 20%
Personal
injury
28% 24% 45% 37% 33% 25% 60% 33% 20%
Wrongful
dismissal
28% 0 0 34% 38% 38% 33% 40% 44%
One apparent pattern in this data is that the rate of resolution is higher for Contracts cases
than for the other two case types. This remains the case in Table 5(B) (cases settled plus
those in which agreement is likely). This may mean that generally Contracts cases have
been more susceptible to settlement in the Saskatchewan program, but this data is at most
moderately suggestive of this conclusion (see discussion above).
Note that the large percentage of unresolved matters in Personal Injury in Prince Albert in
1999/2000 represents just three files.
II. Malpractice cases
It was suggested to us several times by lawyers in discussion groups that medical
malpractice cases might be inherently unsuitable for mediation. In the 2001 Ontario
evaluation (Hann et al 2001), medical malpractice suits were found to settle at a lower
rate than other case types in Toronto (but not in Ottawa, interestingly). Figures for
malpractice cases in Saskatchewan have not been included in the analysis above because
it is too small to provide a basis for drawing sustainable conclusions. However, the
malpractice data for Regina - which carries the largest number of malpractice files ­ was
reviewed. In 1999/2000, 9 malpractice files were mediated in Regina. One was settled,
four were deemed "likely to settle" and 9 were recorded as continuing in further
negotiations. In 2000/2001, 15 malpractice files were mediated. One was settled, 7
deemed "likely to settle" and five were recorded as continuing in further negotiations.
Finally, in 2001/2002, 25 malpractice files were mediated in Regina. One was settled,
five were deemed "likely to settle" and 17 were recorded as continuing in further
negotiations.
These results may suggest that the rate of settlement is indeed somewhat lower in
Malpractice suits than in Contracts cases or even Personal Injuries. However no
47
statistically supportable conclusion to that effect can be drawn from such a small volume
of data. Moreover, these reported outcomes do not account for the other, collateral
benefits of mediation ­ for example, the exchange of information ­ mentioned by
numerous lawyers in the discussion groups and in responding to the audit (see above).
Arguably, this may make mediation useful in malpractice suits even where no formal
settlement is yet attainable.
III. Simplified Rules cases
Another hypothesis often debated is that mediation is more suited to cases involving
smaller rather than larger sums of contests monies. One respondent writes in an email :
"Despite my initial reservations, I must admit that I am a big proponent of mandatory
mediation, especially in disputes involving the Simplified Procedure Rules (under
$50,000). Given that we have no discoveries for these types of cases, mediation is our
first and only pretrial opportunity to assess credibility and to ask a few questions."
(lawyeremail.1)
The debate over whether mediation is more likely to succeed in cases where smaller
amounts of money is involved has not been settled conclusively elsewhere. In Ontario,
Simplified Rules cases are excluded from the mandatory mediation program under Rule
24.1, but in British Columbia and many US states, small claims matters (generally under
$10,000) were the first to be mandated into mediation. In Saskatchewan, cases
proceeding under the Simplified Rules in the Queen's Bench are included in referral to
mediation. Are cases that proceed under the Simplified Rules Procedure (for cases under
$50,000) settling at any significantly different rate than other cases?
Again this analysis could only be accomplished by manual count and thus some caution
must be taken with the results. Because of the difficulty of manual counting, only one
center (Saskatoon) was examined. The figures for Saskatoon are set out below. These
tables show that the total number of Simplified Rules cases in Contracts and Wrongful
Dismissal cases is around 45-50%; and somewhat lower in Personal Injury cases. The
tables go on to show that the representation of Simplified Rules cases among the cases
settled or deemed likely to settle in each case type runs at a slightly higher percentage.
This analysis suggests that Simplified Rules cases may be settling at a slightly higher
level than those cases proceeding outside the Simplified Rules; however it does not
suggest that only or mostly Simplified Rules cases are settling in mediation.
48
Table Set Six Settlement by case type 1999-2002, Saskatoon : percentage
simplified rules cases
Table 6(A) : 1999/2000 Saskatoon Simplified Rules cases
1999/2000
Total #
cases
Percentage
simplified
rules cases
Total #
cases
settled/
"agreement
likely" in
mediation
Percentage
simplified
rules cases
Contracts 182 41% 64 56%
Personal
injury
56 16% 10 20%
Wrongful
dismissal
38 47% 9 89%
Totals 276 37% 83 55%
Table 6(B) : 2000/2001 Saskatoon Simplified Rules cases
2000/2001 Total #
cases
Percentage
simplified
rules cases
Total #
cases
settled/
"agreement
likely" in
mediation
Percentage
simplified
rules cases
Contracts 154 51% 45 67%
Personal
injury
42 24% 7 0%
Wrongful
dismissal
35 54% 10 50%
Totals 231 47% 62 56%
49
Table 6(C) : 2001/2002 Saskatoon Simplified Rules cases
2001/2002
Total #
cases
Percentage
simplified
rules cases
Total #
cases
settled/
"agreement
likely" in
mediation
Percentage
simplified
rules cases
Contracts 231 41% 71 59%
Personal
injury
44 16% 11 27%
Wrongful
dismissal
9 47% 9 56%
Totals 284 41% 119 42%
iv. Repeat players
In order to check that the activities of the major repeat players in mediation were not
skewing the outcome results, the most frequent participants in mediation were analyzed
separately for the year 2000/2001.
This analysis reveals that three of the top four repeat players in the Queen's Bench
mediation program show significantly lower than average outcomes reported in
Categories 1 and 2. These top three players record between 9 and 9.5% of their files
falling into Categories 1 and 2, compared with a rate of 28% for the same period for all
cases in Regina, and 27% in Saskatoon. The fourth of the top four players (#2 in terms of
numbers of files) records outcomes much closer to the overall norm.
This analysis suggests that it is important to ensure that major players who regularly
participate in mediation are fully apprised of how they might use the process to their
advantage and that their full "buy-in" is secured. This may mean listening to any
particular concerns these parties have about the process (several representatives
participated in our discussion groups) and considering how the process may be better
fitted to their needs.
50
b. Does mediation reduce time to settlement?
This question was difficult to answer satisfactorily in the absence of a substantive control
group with which to compare timelines. The task is further complicated (as it is
elsewhere in Canada and the US) by the lack of required information or information
recorded by court databases on the timing of withdrawal from a lawsuit, and the reasons
for withdrawal (settlement, party fatigue or lack of resources, moving away, death).
However, some inference may be drawn from timelines to pre-trial for mediated and non-
mediated (exempted) cases. In Regina in 2000/2001, 655 files were opened by The
Dispute Resolution Office and of these, 13.4% were noted as having a pre-trial date
scheduled within this year (presumably in these cases mediation was unsuccessful). For
these cases, the average (not median) time from the claim to the pre-date of trial was 633
days. In a quasi-control group of 1974 cases which were filed in Regina in 2000/2001
(cases exempted from mediation either under the statute or by The Dispute Resolution
Office or a judge), 0.3% recorded a pre-trial date scheduled during this period. Of these
(6) cases, the average time between claim and pre-trial date was 895 days.
This data suggests that in this very small sample, timelines between claim and pre-trial
were significantly lower for cases that failed to settle in mediation than for those that did
not mediate at all. This is consistent with other studies (see below and Macfarlane, 2002)
which suggest that preparing for and participating in mediation focuses counsel earlier
than usual on considering settlement options, exchanging information, and generally
moves the case along.
Other program evaluations have clearly established that early mediation generally results
in a shorter timeline to settlement. Since settlement occurs in between 95-98% of all civil
filings, the only real question for program planners and policymakers is how to ensure
that settlement occurs sooner, rather than later, in the litigation process (Macfarlane,
2001). An Ontario study by the author in 1995 found that of a sample of 1460 cases filed
in the Ontario General Division between January 1991 and August 1995, 6.4% proceeded
to trial (Macfarlane, 1995) Similar rates of settlement before trial have been found in US
studies; for example, in 1991 just 4% of all cases filed in the US Federal District Court
were ended "at or during trial" (Galanter & Cahill, 1994; Trubek, Sarat, Felstiner, Kritzer
& Grossman, 1983).
Evidence that mandatory mediation shortens the timeline to settlement (or case
disposition) is available from a number of both US and Canadian sources, for example
the 2001 Ontario evaluation (Hann et al, 2001), the 1995 Ontario evaluation (Macfarlane,
1995), the high-quality (and widely relied upon) evaluation of North Carolina's
mediation programs (Clarke, et al 1994). However, some dissenting notes have also been
struck, most significantly by the RAND Report of 1997 (Kakalik et al, 1997) which
found no reduction in case processing times for mediated cases and reported that in one
court, mediated cases took longer to process to settlement (a conclusion reached by
another study of workers compensation mediations in Ohio; Hanson, 1997) (note the
critiques of the RAND study, above).
51
Finally, it is important to recognize when reviewing data on timelines to settlement that
the other settlement events offered in that court may have a significant impact on
disposition times (for example, whether or not pre-trials or settlement conferences are
also offered; whether or not case management is also in place).
c. Is the system of exempting certain cases from mediation working efficiently
without undermining the mandatory nature of mediation?
While section 5 of The Queen's Bench Act automatically exempts certain cases from
mediation (for example, farm foreclosures under The Saskatchewan Farm Security Act,
and the Land Contracts Actions Act), matters commenced other than by statement of
claim, applications for judicial review), further exemptions may be applied for and
granted by both The Dispute Resolution Office and the courts.
The cumulative statistics show the numbers of exemptions granted from the program by
both the court and The Dispute Resolution Office, in the regional centers. These statistics
show some variation between the granting of exemptions in Regina and Saskatoon, and
indicate a slight reduction in the overall numbers of exemptions granted from March 31
2000 and March 31 2001 (but note that these are cumulative figures).
Comparison with yearly statistics for the year ending March 31 1996 and the year ending
March 31 1997 (when the project was limited to Regina and Swift Current) show the rate
of exemptions granted by the court in each of those years running at 3.3% in each case.
There is therefore no evidence that the granting of exemptions has varied significantly
from year-to-year.
Table Seven Exemptions
Cumulative
year ending
Regina Saskatoon All programs
Court-
ordered
Med. Service Court-ordered Med.
Service
Court-
ordered
Med.
Service
March 31
2000
148 3% 607 12.4% 8 0.4% 80 4.4% 160 2.3% 697 10%
March 31
2002
167 2.4% 665 9.7% 25 0.8% 127 3.4% 200 1.7% 808 7%
Some lawyers in discussion groups remarked that since the process for securing an
exemption was itself time-consuming, it was often preferable to simply proceed with the
mediation (this may however lead to some lack of preparedness; see above at Part II
(2)(e)). This may also reflect some regional disparity. The higher rate of exemptions
granted in Regina may reflect the fact that this is where the Director and Assistant
Director and the majority of the administrative team for the mediation program are
52
located. Access to the Director for permission to be exempted may simply be easier and
more widely utilized in Regina than in Saskatoon. This hypothesis could be verified by
examining the total number of applications for exemptions in each center, and their rate
of success; the only figures available at this time are those relating to successful
applications for exemptions.
53
PART III : RECOMMENDATIONS FOR PROGRAM MODIFICATION
The evaluation data, both qualitative and quantitative, which has been collected and
analyzed for this study illuminates the operation of the Saskatchewan Queen's Bench
mediation program and gives voice to the experiences of program users. It provides a
detailed picture of the relationship between lawyers, their clients, the mediators and the
structure and design of the present program.
The Saskatchewan Queen's Bench mediation program is perceived by almost all the
individuals we consulted as appropriate, and its objectives ­ the faster and more
satisfactory reaching of settlement in some civil matters ­ fully achievable. It became
rapidly apparent that the question that respondents were most interested in discussing
with us was not whether the program should be maintained, but how it might be
improved in order to better achieve those objectives.
The consensus that emerges is that the program is reaching its goals in many individual
cases, but not in others. While there is widespread support for both its universal nature
and the present timing of mediation, many respondents called for greater flexibility in
relation to both aspects of program design. In addition, there is an interest in rethinking
the role of the mediator to clarify and perhaps sharpen this point of intervention with
greater proactivity, and perhaps some type of enlarged role before and after mediation in
certain cases.
There are also a few clear problems with the design of the present program. One is that
some cases proceed to mediation with insufficient preparation, perhaps with little or no
exchange of materials in advance of mediation, and just occasionally, an absence of
"good faith" to negotiate. Another issue (perhaps related to this) is the somewhat
uninformed approach of a small number of members of the Bar in regard to the role they
might most effectively adopt in the mediation process. Each of these problems is
resulting in some disappointment among clients, and some frustration among some
members of the Bar.
None of these issues is unique to the Saskatchewan program ­ similar challenges are
experienced in other mandatory mediation programs. However, the depth of experience
with mediation in Saskatchewan ­ predating the Queen's Bench program to the earlier
initiation of the farm debt mediation program ­ and the clarity and consistency of issues
substantiated by this evaluation, present a unique opportunity to address these challenges.
In this spirit, the following fourteen Recommendations are made :
1. The Mandatory Nature of Mediation
The program should remain mandatory for all non-family civil cases, aside from the
present exemptions under section 5 of The Queen's Bench Act.
54
Over time, the use of mediation should become a significant and legitimate conflict
resolution option to be utilized at the discretion of experienced counsel. The
mandatory nature of the program should therefore be regularly reviewed in this light.
2. The Timing of Mediation
a. The initial referral to mediation
Referrals to mediation should continue to be made following the close of pleadings
and before any further applications are made to the Court. It is recommended that
clarification be made of the meaning of section 42(1) of The Queen's Bench Act in
this regard.
b. Requiring the filing of a statement of documents before mediation
However, the precise timing of mediation raises other questions related to the
exchange of information between the parties in order to facilitate constructive
mediation. One of the principal reservations expressed by lawyers and clients alike
regarding early mediation is the lack of information upon which to base substantive
negotiations. This problem relates to frequently voiced concerns about a small
minority of lawyers who sometimes attend mediation without good faith intent to
undertake serious negotiations.
There are at present no formal requirements regarding the exchange of information
between the parties before mediation. In one smaller center, and among some larger
centre lawyers, conventions appear to be evolving to ensure that information and
relevant documents are exchanged in advance of mediation. However this is a
piecemeal solution to a widespread problem.
Other jurisdictions have tried various strategies to address a similar issue of lack of
preparedness. Some have required the parties to file pre-mediation submissions (for
example, Ontario), but these requirements sometimes raise confidentiality concerns
and often result in only minimal compliance. Twenty-two states in the United States
have enacted a good faith rule in mediation, with appropriate penalties (Lande, 2002)
but these rules are highly controversial and did not find favour among our
Saskatchewan respondents.
An alternative solution which is proposed here is the stage at which mediation takes
place in the Queens' Bench program is adjusted slightly to facilitate the further
exchange of information between the parties that would occur naturally as the
litigation process proceeded. This could be achieved by requiring that before
proceeding to mediation, all parties file their statement of documents with the Court
(sometimes described as the affidavit of documents). (Note that this recommendation
may need to be modified to fit the requirements of cases proceeding under the
Simplified Rules).
55
If each party is in possession of the other's statement of documents before mediation,
this may then be used as a basis for requesting particular documents before the parties
meet at mediation, or simply as a tool for anticipating and preparing for that meeting.
While the level of co-operation which transpires at this stage will be a matter for the
parties themselves (possibly with assistance from the mediator in "enhanced package"
cases; see also below at (8)(b)), this requirement will obviate the lack of information
and hence preparedness to negotiate which is evidenced in a small number of cases.
To ensure that this requirement does not unnecessarily delay the conflict resolution
process, an appropriate time period should be stipulated for the filing of a statement
as to documents.
It is important that there are stipulated consequences for failing to comply with this
requirement, or there is a risk that this will simply become a new ground for a non
defaulting party to request an exemption from mediation. Two obvious options are
later cost penalties (along the model of the Ontario mandatory mediation program;
see Rule 24.1.13(d)) or a default judgment being entered against the defaulting party.
This requirement would need to be articulated as an amendment to the present
Regulations. Future dialogue with the Bar, and with Courts Administration and the
Registrar, will be very important to ensure a widely acceptable regulation.
c. "Loop-backs" to mediation
Finally, a number of judges and some lawyers expressed to us their interest in
building further flexibility into the system to enable referral or at least a
recommendation that a file return to mediation at a later stage in the litigation
process. The model of pre-trial hearings which occur at a more mature stage in
litigation than early mediation clearly satisfies many needs (including the input of an
authoritative evaluator), and attracts the widespread support among the Bar.
Nonetheless, we would encourage the development of a formalized mechanism to
enable the referral of a small number of special cases, which appear to be especially
suited to this type of intervention, back into mediation even at this later stage.
3. Adjournments
A formalized system for granting adjournments of mediation (for example until after
the conclusion of discoveries) should be put in place. At present such a process is
referred to under section 7(1)(b) of The Queen's Bench Regulations, but unlike the
exemptions process, does not appear to be either widely used or broadly understood
as being available.
Moreover applications are described in section 7 as being determined by the Court.
This process needs to be as easily accessible as possible, while maintaining the
integrity of the system. This means that it is preferable for postponements to be at the
56
discretion of the Director of the Dispute Resolution Office, rather than requiring an
application to the court.
A paper application process, or adjournment at the unilateral request of one party, is
not recommended. Experience in other programs suggests that this may lead to a
default to adjournment in more cases than are strictly necessary. Instead, a system for
application to the Director of the Dispute Resolution Office should specify criteria for
adjournment including, but not limited to :
 a demonstrated need (i.e. grounded concerns about veracity in mediation)
to conduct examinations under oath in order to verify key evidence; or
 an unavoidable delay in the ability to obtain and/or verify key pieces of
evidence.
The relationship between mediation and pre-trial ­ two very different processes with
different objectives ­ should be taken into account in granting adjournments.
Generally there should be a limit on the length of the delay permitted in an
adjournment, to ensure that mediation takes place in advance of pre-trial. However,
parties should also be able to request a date for mediation shortly before pre-trial
where, in the opinion of counsel, a facilitative process appears to be conducive to
settlement at this stage.
4. Exemptions
The present system for granting exemptions (by both the Director of Dispute
Resolution Office, and by the Court under section 7(1)(b) of The Queen's Bench
Regulations) should continue. This evaluation has not produced any evidence upon
which to expand or add to the case types listed under section 5 of The Queen's
Bench Regulations as automatically exempted from mediation.
It may be useful at this stage in the history of the program to articulate and
promulgate among members of the Bar the basis on which an exemption from
mediation is likely to be granted. A review of case law to date under this provision
suggests that exemptions are generally granted where:
 there is evidence that private mediation has taken place and this has not
been successful; or
 there is no sustainable defence to the action and mediation would simply
delay the outcome; or
 there is evidence of extensive efforts at negotiation between the parties
which have been unsuccessful; or
 the location of the parties is such that mediation would involve extensive
travel and expense; or
 all parties request the exemption from mediation.
57
It is recommended that this case law and the reasons given for granting exemptions be
reviewed in light of the program objectives. The objectives of the mandatory
mediation program have been recently clarified by Mr. Justice Klebuc in Welldone
Plumbing v Total Comfort Systems (2002) SKQB 275 at Para 9. In light of this
judgment, clarification of the scope of section 5 in granting exemptions would be
timely and might avoid the potential for the expansion of the exemptions category
beyond the intent of the legislation.
In addition, it is recommended that in a future list of criteria for exempting cases from
mediation, an authentic fear of intimidation and/or emotional trauma be included.
This recognizes one of the principal concerns about mandatory mediation (that under
certain circumstances a face-to-face meeting will be a very negative experience for
one or more parties). This does not mean that all individuals who have discomfort
about a mediation meeting should always be exempted, but that evidence of a history
of violence or intimidation between the parties may be relevant to granting an
exemption from mediation.
It may also be important to explore the possible reasons for the lower rate of
exemptions granted in Saskatoon compared with Regina (see the discussion above at
Part II(4)(c).
5. Information for the parties
The Dispute Resolution Office produces explanatory literature for clients which
offers a summary of what clients should expect in mediation and answers some
potential user questions about the program. However, very few of our client
respondents indicated that they had seen this information. Many, of course, had been
satisfactorily briefed by their lawyers and were not disadvantaged in any way by
having not seen this literature. However, as a general principle, it is important to try
to get this explanatory information into the hands of the clients to whom it is targeted.
This ensures at least a baseline of information which counsel can and should then
supplement in discussions with his or her client.
It is recommended that The Dispute Resolution Office consider means of increasing
the visibility of its informational materials and solicit the co-operation of the Bar in
handing on such materials to their clients. One way to bring the Bar more fully into
this endeavour as a partner might be for The Dispute Resolution Office to consult
with the Bar over the future format and content of such informational materials.
6. Mediator style, training and qualifications
We heard clearly from program users that they desired mediators to be proactive in
seeking settlement. This does not mean that there is support for replacing the
facilitative model of mediation used in Saskatchewan with an evaluative approach ­
although there are some calls for greater choice and diversity (see also below at
(8)(a)) ­ or for changing present expectations of the qualifications of mediators.
58
In response to many comments on the mediator's role, both positive and negative, it is
recommended that :
a. The facilitative model of mediation be maintained. This means that non-lawyers
as well as lawyers can continue to provide excellent service as mediators;
b. All current and new mediators should have an adequate working knowledge of
civil procedure, and be provided with training to ensure same;
c. Future training for experienced mediators, and training for newly recruited
mediators, should emphasis strategies for an proactive approach, including asking
questions, using caucus where appropriate, and minuting outcomes (see also
below at (7)). Training should also include work on managing relationships with
counsel in order to maintain and build mediator confidence, and enhance a culture
of "mediator management".
7. The role of the mediator in finalizing settlement outcomes
The present "hands-off" approach towards recording the outcomes of mediation has
attracted considerable criticism, especially from clients (see the discussion above at
Part II (2)(c) (iii)).
It is recommended that the practice be developed and encouraged among program
mediators to minute in some detail the outcomes of mediation. Where possible, this
task should be undertaken by counsel with the mediator playing a purely facilitative
role. Mediators should encourage counsel to move to a finalizing of any agreed
outcomes, whether in a handwritten memo or in formal minutes of settlement.
In other cases, it may be necessary for the mediator to ensure that any agreements
reached ­ whether on substance or on process ­ be recorded in writing, and that the
parties agree that these are correct as minuted.
If this recommendation is adopted training should be offered to the mediators to
ensure that they are both comfortable and equipped to undertake this role.
This recommendation is in no way intended to suggest that mediators draft legally
binding agreements in a manner which may constitute the unauthorized practice of
law. The intention is to ensure that an accurate record is made of mediation outcomes
which is approved ­ even verbally ­ by the parties, and to clarify the responsibilities
of the mediator in this regard.
8. Providing more choices to program users
a. mediator selection
At present, mediators are internally assigned to cases. Informally, some counsel will
request a particular mediator. The discretion of counsel to assess what type of
59
mediator is best suited to a particular case is a skill that should be encouraged, and is
an important manifestation of choice in an otherwise mandatory system.
Therefore it is recommended that a process be instituted which gives greater degree
of choice to all parties in selecting a mediator. There are a variety of ways in which
this objective could be accomplished. One is to develop a database of mediators in
which each mediator would provide a short description of her or his background,
special expertise, experience and style. These descriptions would then be made
available to parties, along with other accompanying explanatory information, at the
time that a matter is referred to mediation.
In the event that a selection is not made within a given period of time, a mediator
should be automatically assigned by the Dispute Resolution Office.
Mediator selection should be monitored internally to assess (a) levels of selection
versus assignment (b) which mediators are selected.
b. An optional "enhanced package" of mediation services
There was considerable discussion throughout the evaluation of a possibly enhanced
role for the mediator in certain cases which might benefit from pre-mediation
assistance and/or post-mediation follow-up.
In a pre-mediation model, both lawyers and clients saw the potential for the mediator
to play a constructive role in relation to information exchange, assessing the degree to
which the parties were prepared to bargain in good faith, and ensuring that the
persons with necessary authority were either present at the mediation or accessible at
that time.
In a post-mediation model, both lawyers and particularly clients saw the mediator as
playing a useful role as a quasi-case manager (facilitating a discussion over next
steps) and in ensuring that outcomes contemplated or agreed to in mediation were
formalized and executed in minutes of settlement.
It was also clear from these discussions that while many lawyers saw an enhanced
role for the mediator in some cases, they were unwilling to support the extension of
the mediator's role in all cases. This appears then to be another area in which counsel
and client could be offered a choice of service to be exercised at their discretion.
An "enhanced mediation package" could contain the following components, either
separately or together:
i. The assistance of the mediator for a specified number of hours before mediation
in order to (for example) facilitate information exchange, assess the level of
openness to settlement, and ensure that the appropriate persons are coming to
mediation and are fully briefed on the process and its objectives.
60
ii. The assistance of the mediator for a specified number of hours following
mediation in order to (for example) facilitate and follow up a dialogue over next
steps, and generally keep the process moving.
It is recommended that an "enhanced package" should be offered to all parties on a
pilot basis for a specified period of time (a minimum of six months), without
additional costs. Information on an "enhanced package" of mediation services should
be in The Dispute Resolution Office literature. Take-up and satisfaction levels should
be monitored internally. At the end of the pilot period, it will be necessary to consider
whether there should be user fees attached to accessing the "enhanced package" (see
(9) below).
c. Formalizing opportunities for (i) longer (ii) further mediation sessions
At present, parties are sometimes offered and occasionally avail themselves of (i)
mediation sessions scheduled for longer than the routine two hours and (ii) further
follow-up mediation sessions.
It is recommended that these opportunities are now formalized and information
provided to all parties.
It is recommended that (i) longer and (ii) further mediation sessions should be offered
to all parties on a pilot basis (a minimum of six months) for a specified period of
time, without additional costs. Information on the opportunity to book longer and
subsequent mediation sessions should be included in The Dispute Resolution Office
literature. Take-up and satisfaction levels should be monitored internally. At the end
of the pilot period, it will be necessary to consider whether there should be user fees
attached to taking advantage of these features (see (9) below).
9. User fees
At this point some of the costs of mediation are recouped via an additional filing fee.
No further fee is payable at the time of mediation. It is recommended that the "basic"
package of mediation services required under the legislation ­ a meeting with a
mediator scheduled for two hours ­ continue to be financed in this fashion at no
further cost to the parties.
However, if the provision of enhanced levels of service in some cases is utilized by
the community, there may be a need following a pilot period to consider the
introduction of modest user fees. User fees could be set by tariff and divided equally
between the parties.
61
10. The role of counsel
We heard significant criticism of a small number of counsel by other program users.
This criticism focuses on a lack of preparation and inadequate briefing of clients, and
generally a negative or unconstructive attitude towards mediation. However,
suggestions that new practice rules might be introduced to attempt to deal with these
problems were met with little enthusiasm. Instead, and in order to ensure best practice
in mediation representation, a strengthened commitment to meeting continuing
education needs is proposed.
It is recommended that continuing legal education opportunities in this area be
significantly expanded. Some excellent work has already been done in this area, but
further expansion is warranted to support the continued development of mediation in
Saskatchewan. It is important to build further on existing expertise to ensure that
there is a sharing of experience between more and less experienced mediation
advocates, as well as the encouragement of a continuing and challenging debate about
how best to deliver conflict resolution services to clients. Appropriate objectives for
continuing legal education here include development that is both individual
(enhancing expertise in consensus-building negotiations and mediation) and systemic
(building and enhancing a culture of consensus-based dispute resolution among
advocates in Saskatchewan).
In order to meet these objectives, continuing legal education programs should include
training for lawyers in Principled Negotiation, Mediation Representation and
Advocacy, and Collaborative Law. Lawyers practising in all these areas share a
commitment to using consensus-building processes to advance the interests of their
clients, and together they can build an enviable program of continuing education.
Existing professional organizations within Saskatchewan offer ample opportunity for
collaborative ventures in the area of continuing legal education, under the general
auspices of the Saskatchewan Legal Education Society.
Experience elsewhere indicates that the strong leadership of the Bench is critical to
building a local legal culture in which mediation is seen as an important opportunity
for constructive negotiation in many cases. The involvement of members of the
Saskatchewan judiciary in programs of continuing legal education may be one way to
advance this objective (see also (13) below).
11. Retaining a presumption of face-to-face meetings
There is some complaint that attendance at mediation is excessively expensive for
out-of-province. Some facility for mediation to be conducted using conference calls
has been introduced, but The Dispute Resolution Office is reluctant to allow this to
display face-to-face meeting in other than exceptional circumstances.
62
It is recommended that face-to-face meetings continue to be the norm and that
conference calls are only permitted in exceptional circumstances.
12. Unrepresented (pro se) clients
Pro se clients presently experience high quality service and assistance from The
Dispute Resolution Office. The only change recommended in relation to this group is
that The Dispute Resolution Office literature be reviewed to ensure that it does not
contain an assumption that each client is legally represented. It is also appropriate that
The Dispute Resolution Office literature does not imply that clients must or should be
legally represented in mediation. This is especially important in light of the
increasingly number of pro se litigants seen in the civil justice system throughout
Canada.
13. Enhanced liaison and co-ordination between The Dispute Resolution
Office and the Court of Queen's Bench
There is relatively little contact between The Dispute Resolution Office and the Court
Administration. While working relationships are good, some Court administrators
confided that they knew very little about the operation of the mediation program. It
may be useful to ensure that there is more liaison and sharing of information between
these two programs. For example, it may be appropriate for the consideration of what
further case data might be recorded and tracked (see (14) below) to be developed as a
joint project between the two offices.
This "disconnect" between The Dispute Resolution Office and the Court also seems
to extend to the judiciary. The judges interviewed for this evaluation expressed a
feeling of "disconnect" with the mediation program - that the program operates in a
way that is removed from its civil setting - and that they did not know as much as
they might like about the program and its relationship to their own work. It is
important to consider ways in which the judiciary ­ who are generally very
supportive of the work of The Dispute Resolution Office and can offer important
leadership to the Bar ­ can feel more "in touch" with the mediation program and
perhaps, where appropriate, be identified as supporters of the program (see also above
at (10)).
14. Enhanced case and program data systems
In monitoring the outcomes of mediated cases, it is recommended that The Dispute
Resolution Office review the present classification system whereby mediators
complete a report immediately following a mediation session. This system has
generated considerable concern among members of the Bar and cannot be relied upon
as fully accurate (see Part II(4)(a) (ii). Two changes are specifically recommended:
a. mediators record outcomes as "full settlement", "partial settlement" or "no
settlement". This classification allows less room for subjectivity and has
63
the additional advantage of bringing Saskatchewan into line with most
other jurisdictions with mandatory mediation reporting systems.
b. reports are made 10 days following the mediation session. This will enable
a final follow-up to be made by the mediator or an administrator. In the
effort that no further information is forthcoming, the mediator will file a
report based on what happened at mediation.
It would be helpful for future monitoring and evaluation if additional information on
civil cases could be collected by both The Dispute Resolution Office and the Court of
Queen's Bench. It is recognized that this recommendation cannot be acted upon
without the agreement of the Court of Queen's Bench, but such enhanced data
collection would benefit future program evaluations within the wider ambit of the
Court, as well as at The Dispute Resolution Office.
Especially relevant to program evaluation ­ in particular where an effort is to be made
to compare cases in an experimental stream with a control group ­ would be an
expanded and automated approach to the recording of events in the life of a file. The
more events that can be formally recorded (for example, motions hearings, settlement
conferences, completed examinations for discovery), the more detailed tracking of the
progress of cases both inside and outside experimental "streams" or programs can be
(routinely) conducted. This additional data would enable the tracking of timelines (in
days) from filing to the occurrence of particular events up to and including
discontinuation or "no further activity". The data collated manually for the 2001/2002
Status Check (see above at Part II(4)(ii)) demonstrates the present-day challenges of
assembling such data, which may sometimes be critical to the evaluation of program
efficiency.
Finally, it is recommended that The Dispute Resolution Office develop a simple
consumer satisfaction survey ­ which should be no more than one page in length ­
which can be given to clients at the conclusion of their mediation session. If possible,
clients should be encouraged to complete the survey before they leave. Surveys
should offer the option of anonymity. A similar survey could also be developed for
lawyers.
Julie Macfarlane, Kingsville, May 2003
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Appendix A
Lawyers Discussion groups : May
The questions we have been asked to try to answer are
1. to evaluate how far the mediation program in the Queens' Bench meets the needs
of the people of Saskatchewan (focusing on discussions with client users)
2. to assess the impact of the mandatory mediation program on civil litigation
practice in Saskatchewan (focusing on discussions with members of the Bar)
What brought you to this meeting? What would you like to tell us about your experience
of the mediation program?
Supplementary questions
1. what is your view of the style and knowledge of the mediators?
2. what if any issues do you have with confidentiality of mediation?
3. should this program be extended to the simplified rules procedures?
4. what are your views on the timing of mediation?
5. do you think there has been "culture change" around the idea of using mediation?
6. what are the implications for legal education and training?
Clients Discussion groups : May
The questions we have been asked to try to answer are
1. to evaluate how far the mediation program in the Queens' Bench meets the needs
of the people of Saskatchewan (focusing on discussions with client users)
2. to assess the impact of the mandatory mediation program on civil litigation
practice in Saskatchewan (focusing on discussions with members of the Bar)
What brought you to this meeting? What would you like to tell us about your
experience of the mediation program? What was on your mind when you took up the
invitation?
65
Appendix B
Lawyer Discussion groups : September
Opening question
What are your general perceptions of how the program is working ­ what impact has
it had on your litigation files?
Is mandatory mediation changing the culture of disputing in the courts?
A. Impact
 In what ways has the culture of your local Bar been affected by the introduction of
mandatory mediation in your jurisdiction? Have attitudes towards mediation amongst
members of the local Bar changed?
 Secondary benefits ­ subsequent activity (oversight by mediators?)
 In relation to other procedures
ü Is mediation appropriate for matters proceeding through the simplified rules
procedure? Why/why not?
ü Does participating in earlier mediation make any difference to cases that do
not settle, and continue to pre-trial? (e.g. any less time spent on discoveries?)
B. Process Critique
 What timing would you like for mediation? And why?
 Some lawyers have suggested that mediation is not suitable for every case, and that
they would like different processes for different cases ­ including but not limited to
different timing for ADR. For example, some cases might require more than one
session; discoveries to have taken place first; or a neutral evaluation to be provided.
On the other hand, the existing system is simple and seems fair because it is applied
to all civil cases without exception. What do you think? (optional : offer example of
the residential schools cases)
 What is your view of the role taken by the mediators in this program?
 Have you ever participated in a mediation which you felt was a complete waste of
everybody's time? Why was that? What could have been done differently to make it
more productive?
66
 Why would you want conference calls? Some lawyers have told us that they would
like greater flexibility over the substitution of conference calls for F2F meetings,
perhaps to enable them to get the right people on the line. Others have told us that
they support the emphasis on keeping mediation a F2F process. Is this an issue for
you and what do you think?
 Some lawyers have told us that they are frustrated that sometimes opposing counsel
will not provide necessary disclosures prior to mediation and is poorly prepared,
perhaps appearing without authority to settle. Is this a problem for you and what if
anything do you think could be done about it? (Optional : some jurisdictions tackle
this problem with a "good faith" provision ­ there is something like this in the farm
mediation program. Do you think that is needed here?)
 What is your view of the mediator(s) you have worked with? Are there sufficient
experienced and effective mediators to meet your needs here in _______? Selecting
your own mediator?
Optional question
 Some lawyers we have talked to have said they would like the mediators to take a
more proactive, case management role where they would set sessions, hold pre-
mediation discussions with the lawyers and generally oversee the case through
mediation. Is there a need for such a role?
 How well prepared have you felt by your legal and professional education ­ and what
more, if any, training would enable you to be more effective in mediation?
Check back to opening question
Check first go-round to ensure that all issues have been captured by discussion
All Things Considered Question
Do you think mandatory mediation is a good thing for civil litigation in Saskatchewan?
What would you change?
Have we missed anything?
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Client Discussion groups : September
Opening question
We would like to begin with your overall impressions of the mediation program, before
getting to the specifics of your experiences
How far is the mediation program meeting the needs of the people of Saskatchewan?
A. Client satisfaction
v Some of you will have been to only one mediation, others more than one. In
either case, what now is your view of mediation? How positive/ negative?
v What is your view of the mediator(s) you have worked with?
v How do you feel about your own role in the mediation process? (Was it a
good experience? One that you would have preferred your lawyer handle
without you? One that you would like to handle by yourself as far as
possible?)
v What particular challenges do clients encounter in using mediation?
B. Program Structure and Process
v How well are clients being served by lawyers in the mediation process?
v How satisfied are you with the advance information provided to you by the
court and/ or your lawyer, and how could this be improved?
v Some clients have told us that they would prefer mediation to be offered even
earlier, perhaps before a lawsuit is begun ­ and others have said that it is
pointless to mediate until just before trial. What do you think?
v Are there any other issues which you think are affecting the effectiveness of
the mediation program for clients? For example
 Is it important to select your own choice of mediator?
 To be able to attend mediation without counsel present on either
side?
 Should there be some way of monitoring that disclosure has
taken place and that lawyers are properly prepared for
mediation?
Check back to opening question
Check first go-round to ensure that all issues have been captured by discussion
All Things Considered Question
Do you think mandatory mediation is a good thing for people who need to bring civil
actions in Saskatchewan? What would you change?
Have we missed anything?
68
Appendix C
Interviews with Judges
1. General impression/ perspective of program
2. Relationship between mediation and pre-trials (purpose, objectives, duration,
outcomes, skills)
3. What should be the role of the judge in settlement, from a philosophical
perspective? How does this compare with the role of a mediator?
4. What matters should be exempted from mediation?
5. What leadership role might judges play in building the credibility of
mediation?
6. Referrals by judges into mediation
i. In the present process
ii. Any suggested modifications?
Any other comments on the mediation program?
69
Appendix D
Follow-up interview questions
v Generally, what has been your experience with the mediation program?
v What effect, if any, have you seen the mediation process have on your future
(business or personal) relationships (for example the likelihood of future
litigation)/ the way you might handle a future conflict?
v Specifically for institutional clients, insurers etc
a. How is the present process perceived as useful and constructive by your
corporation/ institution?
b. What are the objections that your corporation/ institution has to mediation?
c. What would make this a more useful process for your particular needs?
d. What is the impact on your internal complaints practices & system/ culture?
v Have you encountered any surprises in mediation? (ask for stories)
v Would you be interested in pre-mediation contact with the mediator (review
purposes e.g. to clarify who will be coming with what authority, to facilitate
exchange of information, ascertain that all parties coming prepared and in
good faith etc)
v Would you be interested in any post-mediation follow-up by the mediator to
ensure that next steps were completed?
v How creative are the agreements? How durable are the agreements?
v (For lawyers) Do you see secondary/ collateral benefits from mediation? Can
you describe these/ give examples?
v Do you think that the present program would benefit from increased judicial
oversight? For example, cost consequences for parties who come unprepared?
v What types of further training do you think would improve the effectiveness
of lawyers in the program?
70
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