The Financial Securities Commission of Ontario (FSCO) has introduced two expedited processes in mediation in an attempt to ease the backlog that has formed.
In its December 2011 newsletter, FSCO describes the two new processes:
• Consent failures (the option to fail mediation on consent, without a mediation meeting); and
• Mandatory settlement ‘Blitz Days.'
With consent failures, FSCO is sending letters to the claimants and insurers on the oldest files awaiting assignment to a mediator advising of the option to fail the mediation upon mutual consent.
The parties will receive a ‘Consent to Fail Mediation Form' with the letter. It requires both parties to list the issues that remain unresolved and to jointly request that the mediation be failed. The form also requires the parties to confirm that they have made best efforts to resolve the dispute without success and that there is no reasonable prospect of a resolution if a meeting were to be held.
FSCO will then assign the form and any supporting document to a mediator who will review the file. If the mediator is satisfied best efforts have been made to resolve the dispute, and if the mediator believes a mediation meeting would not likely result in a resolution, then mediator will be able to close the file.
‘Blitz Days' are aimed at closing multiple files in a single day. They will be held once a week into January 2012.
FSCO will require claimant and insurer representatives with multiple common files that have not yet been assigned to a mediator to attend one or more settlement Blitz Days. FSCO will notify the parties' representatives of their common files and Dispute Resolution Services staff will book the meetings.
FSCO will then assign mediators to facilitate the sessions and record outcomes. At the end of the sessions, a Report of Mediator will be issued reflecting the outcome. Attendance at a Settlement Blitz Day is mandatory for both sides.