Waiting For That Mediation...

Ovid said that Everything comes gradually and at its appointed time, this couldn't be truer of the mediation process at FSCO.

Anyone who has applied for a mediation through the Financial Services Commission is familiar with the inevitable wait involved to have a matter dealt with by the mediator. In recent years the wait times have grown longer and longer. For Plaintiffs, it is often an agonizing wait as their benefits hang in limbo until resolution.

FSCO is well aware of the backlog in mediations. Their own statistics with respect to the delay are startling. According to the minutes from the March 25, 2011counsel forum meeting, FSCO continues to experience the significant delay in processing mediation applications. Consider the following statistics:

Mediation:

• Monthly: February 2011
• Received: 1,725
• Closed: 1,562
• Open Pending: 23,336

Processing Time:

• Complete: 192 days
• Incomplete: 196 days
• Perfected to Assign: 74 days
• Assigned to Report: 73 days

Settlement:

• Full: 64%
• Partial: 7%
• Fail: 26%

Intake:

• Annual: March 2010-February 2011
• Received: 28,043
• Closed: 18,515
• Open Pending: 23, 347

Processing Time:

• Complete: 135 days
• Incomplete: 142 days
• Perfected to Assign: 93 days
• Assigned to Report: 70 days

Settlement:

• Full: 63%
• Partial: 8%
• Fail: 29%

FSCO has indicated that they intend to deal with the backlog by increased staffing and increasing the number of medications that can be performed by individual mediators on any given day. They are also hoping that the new electronic scheduling of mediations by way of their online e-calendar will make the process more efficient.

Of late, counsel has been notified by letters from FSCO of an additional option in dealing with mediations; counsel is now being given the option to jointly consent to fail a mediation where there is no prospect of settlement. Counsel can take advantage of this option only after the parties have made a genuine effort to resolve the issues on their own. FSCO has created a new form for this purpose. It remains to be seen whether this option will actually address the mediation backlog. There is likely a slight benefit to plaintiffs who may shorten their wait time for resolution by foregoing the period up to a pointless mediation, however, once they bypass the mediation they are not yet out of the woods as they may be left to linger in the arbitration queue.