"Re-Opening" - The Future of Mediation After COVID-19

The Province of Ontario entered into Step 1 of its three-step “re-opening” plan on June 11th, 2021. It is anticipated that they will progress to Step 3 (close to “normal”) by the end of the summer, which will include larger in-door gatherings of “non-family” groups.

What will this mean for the practice of mediation (as it has evolved through the pandemic) - a lot, or not much? One thing appears clear. Over the past 15 months, a “sea-change” in mindset about the way we approach dispute resolution processes in Ontario has occurred, and will almost certainly be one of the enduring legacies of the COVID-19 pandemic.

Remote or “virtual” dispute resolution, including many aspects of court operations, can be expected to be here to stay. Too much investment in the conversion of antiquated court processes to a new virtual platform has occurred to expect any wholesale, or even substantial, return to past practices. Access to platforms which support remote and virtual dispute resolution formats are clearly more cost/time effective, and therefore attractive, alternatives for many players (i.e., insurers) in the dispute resolution arena. Parties don’t have to spend the time (or expense) of travelling to a mediation facility which may be fairly distant from them. Nor do they have to incur the cost of paying for that space.

However, the convenience and cost savings alone of virtual platforms should not dictate their use in all, or even most, situations. The parties should be looking to their legal counsel to advise them on the most appropriate format for their particular case.

There will undoubtedly always be cases where meeting in person remains an important element in resolving a dispute, particularly mediations involving more complex issues or large numbers of parties, requiring more than a half-day session (when maintaining “focus” can be a real issue). In these situations, the “soft” skills of a mediator can be of great value, as well as other benefits of in-person mediations which cannot easily be replicated in an online format, including being able to observe participants non-verbal communications and interactions.

My prognostication, for what it is worth, is that the smaller, more straight-forward, cases will continue to employ the virtual dispute resolution platforms going forward, with in-person mediations reserved to more complex cases requiring additional time to resolve (i.e., more than a half-day), or those with more than 3 parties.