Presumptively "In-Person" - Some Anecdotal Observations

Recent visit to Network Downtown

Effective April 19, 2022, the Ontario Superior Court issued a new Practice Direction which, among other things, established “presumptive” modes of proceeding for common litigation events, including mediations. Somewhat curiously, although virtual mediations (as well as discoveries) had become the “default” mode of proceeding for those events since the onset of the pandemic in early 2020, the Practice Direction made “in-person” the presumptive mode of proceeding for mediations (and discoveries as well), requiring that all parties consent to, or the court order, an alternative mode of proceeding, i.e., virtual.

Now some three months later, what has been the fall-out from that new Practice Direction? Perhaps not surprisingly, it appears to have had little practical impact. Recent personal experiences and anecdotal information from others include:

1. A recent attendance at Network Downtown (which has downsized its physical space substantially). Our group were the only ones present. Inquiries with the staff confirmed that this level of occupancy has remained the rule rather than the exception.

2. Multiple insurance defence counsel have advised that their client’s “standing instructions'“ are virtual proceedings only, unless compelled to attend in-person.

3. Virtually all counsel advise that their practices have not really been impacted by the recent changes in terms of the presumptive mode of proceeding for mediations (or discoveries) directed by the Court.

4. Most mediators have noticed no appreciable “uptick” in in-person bookings.

Why is this? Most likely because all the particpants in these events have become quite comfortable with the “virtual” status quo, for the following reasons:

1. Effectiveness - Virtual proceedings are no longer viewed as “inferior” to in-person ones.

2. Efficiency - Time saved by not having to travel to an event, plus the advantage of having “large screen” access to one’s electronic file and office.

3. Cost Savings - In addition to the value of the time saved, the cost of external facilities does not have to be incurred.

4. Less Stressful - Plaintiff clients can participate from more comfortable surroundings, and not face the stress of attending an unfamiliar environment.

5. Multi-tasking - Insurance clients can optomize their time during the “down times” in the process when they do not have to be actively engaged.

Obviously, there will still be situations where an in-person proceeeding will be preferable, such as when technologically unsophisticated individuals are involved or with larger, multi-party, proceedings where a virtual process is too cumbersome. However, the combination of the now well established comfort of counsel with virtual proceedings, together with its efficiencies and cost savings, will likely continue to make it the default mode of proceeding notwithstanding the Court’s directions.