Compare and Contrast: The Conference System vs. Mediation

I have a ‘thought exercise’ for you. It arises from a recent judicial comment made at a trial management conference reported at Diamond v. Berman, 2019 ONSC 2915~10 (CanLII):
 
The husband has conflated the conference process with mediation and while the former is purposed, as FLR 17(8) mandates, to explore, help settle and to streamline the litigation process, it is not mediation, a critical distinction.
So, here’s the question: How is the conference system different from mediation?
 
The exercise of breaking both processes into component pieces may help in considering what pieces can (or should) be adapted between each process.
 
Probably the best place to start is at Rule 17, which lists the various conference goals between 17(4), (5), and (6), which, summarized, include:

• exploring the chances of settling the case;
• identifying the issues that are in dispute and those that are not in dispute;
• exploring ways to resolve the issues that are in dispute;
• settling or narrowing the issues in dispute;
• ensuring disclosure of the relevant evidence;
• noting admissions that may simplify the case;
• arranging to receive evidence by a written report, an agreed statement of facts, an affidavit or another method;
• identifying the witnesses, exploring the use of expert evidence or reports and other evidence to be presented at trial; and
• setting a specific timetable for the steps to be taken in the case

Clearly many elements noted above, even setting timetables, are transferable to mediation. Here are some others:

• Ability to remotely attend by phone/video conference, 17(16-17)
• Confirming that no settlement is effective unless in writing, signed and witnessed, and, in a case involving a special party, approved by the court, 17(19)
• Confidentiality (non-compellability) of conference briefs, 17(23)

Continuing through Rule 17, there are clearly court-centric rules that diverge from mediation:

• The necessity for conference briefs, 17(13)
• The necessity to confirm the date and all the new rules regarding conferring about the issues in dispute, 17(14)
• Requirement to bring documents to the conference, 17(14.1)
• The ability to order costs for unpreparedness or in the cause, 17(18-18.1)
• The conference judge is not the judge hearing the merits (which can be waived between mediation and arbitration), 17(24)

In caselaw, the court has further delineated its role in relation to mediation:

• A court won’t order costs on a private mediation, even if it is aborted by one party, unless it is an ordered step: Albrecht v. Emerson, 2017 ONCJ 159 (CanLII)
• Whereas the court has, thankfully, found that mediation screening notes are not compellable: Benson v. Kitt, 2018 ONSC 7552 (CanLII),  R.17(23) is not a complete blanket prohibition on entering information from a conference brief into evidence if there is a legitimate need or the probative value outweighs possible harm (e.g. misrepresentation): Grieder v Kovalchuk, 2018 ONCJ 712~63, FN9 (CanLII)

The analysis above has started from the court process perspective. Here’s where you come in: What about from the mediation perspective? Here are some obvious differences: the need to screen for power imbalances; techniques other than neutral evaluation; mediation as reflective of the parties’ power to settle rather than a court’s power to impose a resolution, both procedurally and substantively. What else can you come up with?

Provided by: Shmuel Stern who practices family law at Boulby Weinberg LLP in Toronto. You can follow his feed of curated Ontario case law at www.twitter.com/corollaryrelief