The Employment Lawyers Association of Ontario (ELAO) is urging the Human Rights Tribunal of Ontario (HRTO) to adopt mandatory mediation, a move they believe will streamline case resolutions and alleviate the tribunal’s significant backlog.
“Mandatory mediation, especially at the Superior Court level, has been really successful,” said Andrew Monkhouse, managing partner at Monkhouse Law in Toronto and president of the ELAO. “The pilot program in that has been exceptionally successful. That shows that automatic referral to mediation, or having mediation be a required step in the process, can be dealt with well.”
Mandatory mediation is already in place at the Superior Court level in certain jurisdictions across Ontario, including Toronto, Ottawa, and Essex County (Windsor), he said.
Currently, the HRTO offers mediation on a two-party consent basis, requiring both parties to agree before proceeding. Monkhouse argues that making mediation an automatic step would increase settlement rates, even in cases where parties are initially skeptical about its usefulness.
“About 80 per cent of those types of cases, even where parties think that mediation isn’t going to be helpful, still are able to get resolved at mediations,” he said. “If mediation is happening in more of the HRTO cases, then you’re going to see a circumstance where it greatly helps with the current backlog at the HRTO with more cases settling earlier.”
The ELAO’s submission to the HRTO highlights three key recommendations:
Allow parties to choose their own mediators: This respects party autonomy and enables them to select mediators with specific expertise or whom they believe can facilitate a settlement more effectively. “Allowing that free market activity is beneficial,” Monkhouse noted. “It assists them, from a financial perspective, to some extent.”
Make plenary sessions optional: By not mandating face-to-face meetings between parties, especially in sensitive cases involving harassment or assault, the process can avoid exacerbating power imbalances. “Once you remove plenary sessions… then that concern about forcing someone to confront their assaulter or their harasser… all go away,” said Monkhouse.
Use the term “automatic mediation” instead of “mandatory mediation”: The ELAO believes that changing the nomenclature can reduce psychological pushback. “We suggest… automatic mediation… because lawyers don’t love things that are called mandatory,” Monkhouse explained. “It makes it sound less pushy that way.”
Tahir Khorasanee, a senior associate at Steinbergs LLP in Toronto and vice-president of the ELAO, said there is an urgency to these reforms due to the HRTO’s current inefficiencies.
“We do have a broken justice system now, and even in the courts, and the HRTO is even more broken,” Khorasanee said. “It’s so bad that even when you have better remedies available at the HRTO, parties will still file claims in court because of the delay.”
Khorasanee believes that automatic mediation is a simple yet effective solution. “We have already three jurisdictions in Ontario that have this in place,” he said. “No one’s complaining. Everyone loves it, and that’s why everybody’s filing claims in these particular jurisdictions.”
Loss of case law?
Addressing concerns about losing valuable case law due to increased settlements, Monkhouse dismissed the notion.
“In my opinion, no, there isn’t a risk we’ll lose case law because of this,” he said. “We haven’t seen at the Superior Court level or other places where mediation is required a loss of case law. There’s still plenty of case law coming out.”
For HR professionals and employers, the ELAO’s proposals could mean quicker resolutions to human rights disputes, reduced legal costs, and less strain on organizational resources. Mediation provides an opportunity for both parties to reach a mutually agreeable solution without the prolonged stress of tribunal proceedings.
“Mediation allows people to have a voluntary resolution of the matter earlier, with less stress, less legal costs, and less anxiety,” Monkhouse said. “All of those things are good things.”
Financial benefits
The ELAO also underscores the financial benefits of allowing parties to choose private mediators. “When someone hires a private mediator for $5,000, $6,000, $7,000… they don’t just come and say ‘hi, bye,’ and leave,” Khorasanee said. “It ends up being a very fruitful process.”
“We hope that the HRTO adopts our suggestions, which are so simple,” Khorasanee said. “We think that will most certainly have a huge impact on the caseload of the HRTO.”
