DISPUTE RESOLUTION GROUP COMPANY'S FORUM MINUTES OF MEETING MARCH 2, 1999
Attendees:
Jan Mackintosh, Registrar, DRG, FSCO
Mavis Haws, Dominion of Canada Insurance Company
Dragana Sivac, Arbitration Unit, FSCO
Anne Baumgartner, General Accident Group (Canada) Ltd.
Gail Moser, Economical Mutual Insurance
Brian Jarvis, Halifax Insurance Company
Phil Thorpe, Co-operators General Insurance Company
Brad Barber, Allstate Insurance Company
Mike Pizzey (for Terry Brady), CICMA
Dean Furzecott, Belair Direct
Shonna Neil, Mediation Unit, FSCO
Debbie Diamanti, Zurich Canada
Mike Delahaye, Wawanesa Mutual Insurance Company
Barbara Dudzinski, Director of Mediations, FSCO
Donna Brown, Arbitration Unit, FSCO
Deirdre Martin, Insurance Council of Canada
- Statistics - Jan Mackintosh
Mediation is levelling off. The incoming figures remain relatively static with the previous decline. At present the FSCO finds that they are closing slightly fewer mediations than they are receiving.
Arbitration applications continue to decline in comparison to previous years. This has allowed the FSCO to reduce the backlog of cases. In addition, there have been some Arbitrators hired on short-term contract to assist with the backlog. They have been in place since February 1, 1999.
Letters offering earlier dates for arbitration hearings have been sent out. To date, there has not been much take-up on this offer. The FSCO is experiencing difficulty in getting counsel to schedule the hearings this quickly. This may adjust over time. Pre-hearings are being scheduled within 6 to 8 weeks of the FSCO receiving the response to the Application for Arbitration. These new time frames will be publicized in the Practice Code.
At present, the FSCO is offering hearing dates within 4 months of the pre-hearing. The Superintendent expects this standard to be maintained on a permanent basis.
If the old cases are excluded from the equation, decisions are being published on average within 72 days. The FSCO hopes to maintain an average of 60 to 85 days.
Percentage of appeals has remained fairly consistent. Jan asked that we make our staff and counsel aware that the FSCO will do a mediation of both the Tort and AB claim (after the mandatory mediation if the applicant has chosen to proceed to Arbitration) with consent of all participants. The FSCO cannot mediate the Tort claim but both parties can be brought to the table to participate in settlement discussions with consent.
If insurers or their representatives would provide the names of a few alternative mediators, or arbitrators and a few alternate time frames, the FSCO can try to accommodate specific requests.
The FSCO is also prepared to provide the assistance of a mediator and/or arbitrator to settlement meetings or settlement conferences arranged by an insurer at premises arranged by the insurer. A written request to the Registrar, well in advance of the proposed dates, is required.
A special note was made that the Neutral Evaluation process is not being utilized much and could be used more often to address preliminary issues. Consideration is being given to amending the Dispute Resolution Practice Code to provide for a longer time frame.
- Director of Mediation Services
Jan Mackintosh introduced Barbara Dudzinski, Director of Mediation Services. Barbara was previously the Director of the Motor Vehicle Accident Claims Fund and brings a strong financial background to her new position.
- Adams Report - Update
Everyone present received a copy of the executive summary regarding major recommendations by George Adams and responses by DRG.
Jan Mackintosh advised that she is preparing a letter to the group about the update and highlighted the following areas of the report:
• Production of documents - stricter enforcement and penalties
• Mediation representatives being utilized at settlement conferences prior to the Arbitration hearing - a pilot project is currently underway
• Oral decisions - it should be noted that a court reporter must be present at the Arbitration if you intend to ask for an oral decision
• Revisions to the Practice Code - initial draft target date: June 1999.
- Practice Code Amendments
Jan Mackintosh has requested assistance in identifying areas that need changes or that need 'massaging'. This includes anything which may be found on your "Practice Code Wish List" including practice notes, introductory matters, etc.
Jan specifically requested suggestions about how the FSCO can deal with files where there are questions about capacity.
Please send your Wish List and suggestions to:
Janice Mackintosh
Executive Co-ordinator/Registrar
Dispute Resolution Group
Financial Services Commission
Telephone: (416) 590-7082
Fax: (416) 590-8462
Email: Jmackint@fsco.gov.on.ca
In addition, Brian Jarvis will be sending a facsimile requesting volunteer participation in a subcommittee to assist Jan Mackintosh in this endeavour.
- Insurers first quarter experience
In general, Arbitration and Mediation applications are down and there has been an increase in Litigation.
Mediation applications received were focused primarily on fairly recent claims, some as new as 4 months. Most of the applications were for claims which occurred during 1998.
A number of the Bill 164 claims initiated mediation and were scheduling late dates due to settlement discussions being arranged.
It was noted that private mediation is being used quite frequently due to the ability to select the mediator, time flexibility and accessibility without issues in dispute. In addition, the private mediation usually carries on for 5 to 6 hours and results in settlement.
- Additional Business
a) Changes in Case Administration staff:
Ron Casey has retired and Avni Shah will replace him on a temporary basis.
Chantal Laurin has been temporarily replaced by Hanan Dagher.
b) Possible strike - Administrative Support Group
It should be known by March 8, 1999 whether or not there will be a strike of OPSEU workers and the FSCO does have a contingency plan in place in the event that the strike does take place.
It should be noted that scheduled events will proceed as planned.
However, a strike may delay the booking of new events since OPSEU staff are responsible for booking pre-hearings.
There may be some inconvenience with pickets although it is hoped that there will be little disruption with access to the building.
c) Arbitration caseworkers
There has been a problem with the FSCO being notified when claims are settled prior to the Arbitration hearing. Both parties involved should notify the FSCO (and not assume that the other party will do so) to ensure that notification is received.
In addition, please remind your staff and counsel that the assessment fee will be refunded if the FSCO receives notification of the settlement before the response is due. Counsel should also be reminded that the pre-hearing is the time to discuss an award of the equivalent of the assessment fee paid by the insurer, if the claim is considered frivolous or vexatious.
d) Settlement Conferences
At present, settlement conferences are being scheduled 2 weeks before the scheduled Arbitration. Unfortunately, this effort is not working as settlement officers are finding that counsel are not ready at that point. For the present, this time frame will continue with the expectation that some improvement in the results may be seen. Alternatively, a reversion to the 1 week time frame may become necessary.
e) Mediation Application Intake Process
Several insurers noted improvements in the information contained on applications for mediation as a result of the caseworkers heightened involvement in the mediation application intake process.
Next Meetings:
June 22, 1999 10:00 a.m
and
September 21, 1999 10:00 a.m.
Financial Services Commission of Ontario