“L.D.’s refusal to submit to arbitration, especially when the Court later validated her position that the parties’ education plan, and the choice of schools it entailed, was still in the children’s best interests, does not disentitle her to her costs. In Baldwin v. Daubney, (2006) 2006 CanLII 33317 (ON SC), 21 B.L.R. (4th) 232 (Ont. S.C.J.), at para. 12, Spence J. declined to consider a refusal to mediate as a factor in the exercise of his costs discretion:
The plaintiffs say that the defendants refused the request of the plaintiffs to mediate and thereby caused the motion to proceed with its attendant costs, which a successful mediation would have avoided. The defendants say they considered they had a good defence and were not obliged to mediate. Mediation is most likely to be successful where each party considers it has something material to gain from a settlement and appreciates that to achieve a settlement it will need to accept a compromise of its position. Where one litigant is confident that its position will succeed in court, it has little reason to take part in a process that would yield it a lesser result and it is not bound to do so. Indeed, to take part in a mediation in such circumstances could simply prolong the process and add to the cost.
[Emphasis added]
Where mediation has a reasonable prospect of success, and a refusal to participate reflects a party’s unwillingness to entertain a less expensive and speedier means of resolving the issues in a just manner, it can be regarded as unreasonable conduct and attract a costs sanction. Mediation often offers a less expensive means of resolving family law disputes than adjudication. See: Joanne Gross, An Introduction to Alternative Dispute Resolution, 1995 CanLIIDocs 178, at page 9, in which the author cites research conducted in 1990 by J. Kelly, Past President of the Academy of Family Mediators, which showed that the mean cost of the adversarial process for both the husband and wife combined was 134 percent higher than the costs of comprehensive mediation.
In their article, Resolving Family Law Disputes, Infographic, Canadian Forum on Civil Justice, 2018 CanLIIDocs 11081, https://canlii.ca/t/t1n5:, the authors report that they asked 166 lawyers practicing family law in Alberta, British Columbia, Ontario and Nova Scotia questions about the benefits, limitations, cost, and suitability of Collaboration, Mediation, Arbitration and Litigation to resolve different types of family law problems. The authors state:
A majority of lawyers agreed that mediation, arbitration and collaboration are usually cost-effective. Typical low-conflict cases resolved through collaboration or mediation cost almost half that of low- conflict cases resolved through arbitration or litigation….
Joanne J Paetsch, Lorne D Bertrand and John-Paul Boyd came to the same conclusion in An Evaluation of the Cost of Family Law Disputes: Measuring the Cost Implication of Various Dispute Resolution Methods, Canadian Forum on Civil Justice (www.cfcj-fcjc.org) 2018 CanLIIDocs 11070; as do Noel Semple and Nicholas Bala in an article, Reforming Ontario’s Family Justice System: An Evidence-Based Approach, 2013 CanLIIDocs 498, at pages 147-148.”