Mandatory Mediation

Mandatory mediation in Saskatchewan has its legislative roots in the farm debt crisis. The Farm Land Security Act, S.S. 1984-85-86, c.F-8.01 introduced a formal mediation process to resolve disputes between farmers and lenders in 1985. Mediation has been called “the most significant component of Saskatchewan's legislative attempt to deal with farm debt” and it is Saskatchewan's success with the farm program that supported other progressive mandatory mediation programs.

The idea of facilitating settlements in agricultural disputes had existed long before 1995. The Provincial Mediation Board Act, S.S. 1943, c. 15, which evolved out of The Debt Adjustment Act, S.S. 1934-35, c.88, established a board with the mandate to “endeavour to bring about an amicable arrangement for payment of the debtor's indebtedness” (s.5(1)). However, the board's role included broader tasks, such as advising the debtor or creditor, and inquiring into the validity of claims (s.5(1)).

It was in 1988 that mediation - by an independent trained mediator - was entrenched as a formal step in farm debt collection actions. The Saskatchewan Farm Security Act, S.S. 1988-89, c.S-17.1 separated the functions of the board and mediators, made mediation a mandatory step, and delegated the responsibility for providing mediation to the Mediation Services branch of Saskatchewan Justice (now called the Dispute Resolution Office).

Saskatchewan's success with the farm debt mediation program (which has reached settlement rates of 70-80%) paved the way for broader legislative advancements. In 1994, the government introduced a program of mandatory mediation in the Court of Queen's Bench, which applied to all civil actions outside of family law cases (with some other exceptions). First established as a pilot project in Regina and Swift Current in 1994, the mandatory mediation program has since been expanded to Saskatoon and Prince Albert, and applies to 80% of all (non-family) civil cases in that court (The Queen's Bench Act, 1998, S.S. 1998, c.Q-1.01, s.42). In all cases not exempted, a mediation must be held at the close of pleadings and before any other step can be taken in the action.

There has also been a long history of mediation in the labour sector. The parties to a grievance always have the option of referring the dispute to mediation (an option preserved by s.26.4 of The Trade Union Act, regardless of the absence of such a term in a collective agreement). However, aside from the Minister's ability to appoint a “special mediator” to deal with a dispute, under s.23.1 of that Act, there is no mandatory element to the mediation addressed by this legislation.

Finally, there is a history of mediation in the family area as well. In 1994, the Saskatchewan government experimented with mandatory mediation “orientation” sessions for parties in family disputes (The Queen's Bench (Mediation) Amendment Act, S.S. 1994, c.20). Under these provisions, the parties had to attend for separate sessions with a mediator, to discuss the option of mediation. These legislative provisions were later repealed, and mediation in this area remains voluntary.

Michaela Keet

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Further Reading

Benson, Marjorie L. 1996. Agricultural Law in Canada 1867-1995: With Particular Reference to Saskatchewan. Calgary: Canadian Institute of Resources Law; Keet, Michaela, and Teresa B. Salamone. 2001. “From Litigation to Mediation: Using Advocacy Skills for Success in Mandatory or Court-Connected Mediation,” Saskatchewan Law Review 64 (1): 57; Layh, Donald H. 1992. “Legislative Options to Manage the Farm Debt Crisis.” Donald E. Buckingham and Ken Norman (eds.). 1992. Law Agriculture and the Farm Crisis. Saskatoon: Purich Publishing.