CASE MANAGEMENT AND MEDIATION IN ONTARIO, CANADA. Case Management is a work in progress

Transcription

1 CASE MANAGEMENT AND MEDIATION IN ONTARIO, CANADA Case Management is a work in progress

2 What is case management? The pace of the case is controlled by the court Case flow management: the rules fix the deadlines; the court can order extensions Case management: the court manages the issues as well as the timetable

3 Goal of Case Management reduce unnecessary cost and delay facilitate early and fair settlements bring proceedings expeditiously to a just conclusion while allowing sufficient time to prepare and conduct the proceeding

4 Tools of Case Management Case conferences By telephone By appearance In writing Summary motions Settlement conferences Other ADR processes

5 Toronto Model to December 2004 Issue claim Pleadings Defence or judgment within 180 days if not, dismissed by registrar Affidavit of Documents Mediation within 90 days of first defence Individual calendaring: one Master assigned File timetable within 30 days of mediation

6 Individual calendaring: one Master assigned File timetable within 30 days of mediation Convene a case Conference if required at any time Examinations for discovery Motions if required may be brought at any time Settlement conference: 6-8 weeks before trial 150 or 240 days after first defence Trial management conference if required Trial

7 Toronto Model since January 2006 Issue claim Pleadings Defence or judgment within 2 years if not, status hearing with judge or master Affidavit of Documents Mediation any time before settlement conference

8 No individual Master assigned unless special case Convene a case Conference if required at any time Examinations for discovery Motions if required may be brought at any time Pre-trial: 6-8 weeks before trial Trial management conference if required Trial

9 Case conference Custom design a litigation timetable Modify a timetable if Resolve procedural issues avoid motions Work with the parties to: Narrow issues Resolve issues Achieve consensus

10 Powers of Masters and Judges at a case conference Convene a case conference at any time Create or amend a timetable Extend or abridge deadlines On notice, move an action into or out of CM Set aside a registrar s order Identify issues in the lawsuit

11 Explore methods to resolve disputed issues Make procedural orders On consent, make interlocutory orders On consent, order an ADR process Impose sanctions for breach of rules, a timetable or default of mandatory mediation. (examples: costs, strike a pleadings, dismiss an action or such other order as is just )

12 Also, at a case conference the master or judge may: Make orders, impose terms and give directions as necessary to carry out the purpose of the case management rule

13 Case Management Motions Simplify: Use fill-in-the-blank form Save paper: lawyer certifies where not contentious No formal order required except: If under appeal If enforcement proceedings taken

14 Mandatory Mediation Court-connected Roster maintained by Attorney General Also private mediators Mediator qualifications and code of conduct Tariff for fees Timing of mediation when in the action? Duration of mediation 3 hours

15 Settlement conferences (JDR) 6 to 8 weeks before trial Parties must attend Judicial official as facilitator Interest based or evaluative? NJI training for judges

16 Lessons Learned Design a system that fits within resources Consult with all stakeholders A new CM model will not likely survive a backlog brought in all at once Timing of mediation must be flexible Timetables should be flexible Education is crucial: judges and bar Fixed trial dates

17 Designing a CM Model Questions to ask yourself Case management or case flow management? Who will run CM judges? Staff? Other? What cases should be subject to CM? All cases? Complex cases only? Type of case? How do you deal with the backlog? Can you deliver fixed trial dates?

18 Designing a CM Model Questions to ask yourself (continued) Should mediation be mandatory? How will mediators be selected or assigned? Who pays the mediator? Should fees be regulated? When should mediation be conducted? How do you create a culture of good faith in the mediation?

19 Designing a CM Model Questions to ask yourself (continued) Should JDR be available? Should special types of cases have their own model for CM? Anticipate potential opposition and develop strategies to deal with it at the outset Opposition from the bar Opposition from the bench

20 Conclusion A well designed and carefully implemented case management model reduces the costs and delays of litigation, and will result in increased access to justice by the public Prepared by Master Carol Albert of the Superior Court of Justice, Ontario, Canada January 2006