S4-Episode 6: Why mediation matters: Improving outcomes in FOI appeals

Patricia Kosseim:

Hello, I'm Patricia Kosseim, Ontario's Information and Privacy Commissioner and you're listening to Info Matters, a podcast about people, privacy, and access to information. We dive into conversations with people from all walks of life and hear real stories about the access and privacy issues that matter most to them.

Hello listeners and welcome to another episode of Info Matters. Thanks for tuning in. Freedom of information is essential for shedding light on issues that matter to individuals and communities. Whether it's access to records relating to the activities of government or records of your own personal information, you have a right to know. Under Ontario's freedom of information laws, you can file a freedom of information request to seek access to government records. Once you filed your request, the institution generally has 30 days to respond, unless they have reason to extend this timeline. Sometimes you receive the information you want or need and sometimes you don't.

Although access should be the general rule, there are legal exceptions, and institutions have certain legitimate grounds for denying access to information. But if you're dissatisfied with a decision made by an institution in response to your request, and if you reasonably believe the decision does not comply with the law, this is where my office can come in.

In Ontario, you have 30 days from the date of the institution's decision to file an appeal with our office. You may choose to file an appeal because you disagree with how long the institution is taking to respond to your request or because you think the fee estimate they've provided to cover the administrative costs associated with your request is too high. Perhaps an institution has indicated that some or all of the records you requested don't exist, but you have reason to believe otherwise or you may not agree that the exemption that the institution is relying on to deny you access applies in your specific case.

In many instances, issues like these can be resolved very early on in our dispute resolution process here at the IPC, sometimes at intake or early resolution and sometimes on an expedited basis. In other cases, the appeal proceeds to the mediation stage where parties work together through an experienced mediator to come to mutually agreeable resolution.

So you may be asking, what is mediation? How does it work? What do I need to prepare for a mediation session? Well, in this episode, you'll get answers to these questions and more. My guest today is Shaun Sanderson, a mediator at the IPC. She's talented and dedicated and has decades of experience working with parties to facilitate and resolve access appeals. Shaun, welcome to the show.

Shaun Sanderson:

Thank you very much.

PK:

Shaun, you've been a mediator for several years, both here at our office at IPC and at the Workplace Safety and Insurance Appeals Tribunal. Tell us a little bit about how you started in this line of work, and what kinds of skills does a mediator like you need to have?

SS:

I was a pre-hearing legal worker at the Workplace Safety and Insurance Appeals Tribunal when I was given an opportunity to take some mediation training courses and that introduced me to the field of conflict resolution. At that time, tribunals and courts were really embracing alternative dispute resolution and there was an explosion of courses and programs being developed throughout the province. After working at the tribunal for a few years, I joined the IPC as a mediator in 2000 and I've been working here ever since, both as a mediator and in various roles relating to mediation.

In terms of the skills that a mediator needs, obviously there are a lot of courses that all of our mediators at the IPC have taken to become certified as mediators. But in terms of the most important skill that I think that a mediator needs is really to be a good listener. Listening skills are really critical in understanding and assisting the parties throughout the mediation process. When someone comes to our office or to any government appeal body, they have a story, they have a reason that they've filed an appeal, they have an issue that's very important to them and they have a history. They need to feel heard and understood. And as a mediator, being able to really truly listen to what their needs are, what their concerns are, and what their interests are will go a long way in establishing rapport with the parties, in building trust with the parties, and in eventually hopefully being able to assist them in resolving their dispute.

I think maybe another important skill really is patience, because being a mediator, you are in the middle of conflicts all day long. It can be very long and exhausting process and you really need to have the patience to allow the parties to go through the process and come to a resolution however long that might take. So I think those are kind of really important skills for a mediator to have.

PK:

And as you say, those don't necessarily get taught or learned in courses, but this is the kind of experience that you get on the job and through the many years of working this area, as you have.

Many of our listeners may not really be familiar with the mediation process, how it works, particularly in the context of access to information appeals. Can you give us a bird's eye view of the mediation process at the IPC?

SS:

I should start by saying that mediation is the IPC's preferred method of dispute resolution. At the beginning of receiving an appeal, our office makes sure that we have all of the relevant documentation and the records at issue at the intake stage of the appeal process, and then the file is transferred to mediation. The mediator receives the file, they obviously review all of the documents and correspondence in the file, and then basically the mediator determines how the process will unfold as each appeal that we do receive at our office is unique. Every file has its own special circumstances and issues and the mediator decides how to proceed with the mediation.

So they will reach out obviously to both parties. And the role really of the mediator is to educate the parties about the process. So we do go through the whole mediation process with them and we go through the FOI legislation with them.

We work with the parties, well, especially with the appellant, to clarify the issues in dispute. So what is it that they're appealing? What are their concerns, why it brought them here? Our job really and our goal is to try to settle all of the issues in the appeal. Or if we're not able to settle them completely ,to narrow and clarify the issues that may proceed to adjudication, which is the next stage of the appeal process if the file doesn't settle in mediation. We really try to work with the parties to reach a voluntary, a mutually acceptable resolution of the issues and dispute. And this can basically mean reducing the number of records at issue as well as the number of exemptions at issue.

Part of the mediator's role is also to provide advisory opinions to the parties based on past IPC orders. So we have hundreds and hundreds of orders on our website that appellants and institutions can research, but the mediator's role is to research these orders and to provide their advisory opinion to the parties as to the likely outcome of success if the file moves to adjudication.

It is important also to point out that mediators are neutral. We are neutral third parties, so we can provide opinions, but we don't make decisions.

In terms of educating the parties, we do share a lot of guidance documents that our office has developed over the years. We have interpretation bulletins that explain the exemptions in a way that people can understand them. Give examples using plain language, it kind of explains those exemptions to the parties. So we do share those fact sheets, guidance documents, and we share orders with the parties to assist them in the mediation process.

In terms of the approach to mediation, we explore interest-based and rights-based approaches to mediation. And then in terms of methods of mediation, we do some shuttle mediation, which means that's where the parties go back and forth and the mediator facilitates discussions by contacting one party and then the other party. But really, our preferred method of mediation is through either teleconferences with the parties or face-to-face or Teams meetings with the parties because it is so important for the parties to be together at the same time to enable communication between the parties.

That's where really the mediation happens. That's where parties can explain their positions to each other. We can build trust and communication between the parties. It improves future interactions for ongoing relationships.

There's often a lack of communication at the request stage, which is unfortunate because when they come to mediation, we realize that if an issue had been clarified at the request stage, they may not even need to have filed an appeal. So sometimes it's really just figuring out the interest of the parties. So having a teleconference is very important for the parties to be able to communicate directly rather than having a back and forth long, drawn-out process where we do the shuttle mediation.

But depending on the circumstances of the appeal and the issues and the appeal to mediator decides on the appropriate method for mediation, and we will attempt to resolve the appeal as best we can and as quickly as we can. If the file doesn't resolve, then we issue a mediator's report at the end of the process and prepare the file for adjudication.

PK:

Which is a more formal means of resolving the matter before our tribunal, of course.

SS:

Yes, absolutely. That's a very good point. Basically, the mediation process is a much less formal process and it allows, like I said, for direct communication between the parties rather than adjudication, where it's a much more formal process conducted through written representations with the parties.

PK:

A couple of things you said that I thought were really interesting, and that's how you measure success as a mediator. Sometimes success is not always about resolving the file completely, but even partial resolution in terms of narrowing the issues or narrowing the number of records at issue is a success in and of itself.

Another thing you said is really important and I've come to appreciate myself, is the educational role of the mediator. You play a big role educating the parties who may not be familiar. And either party, sometimes it's the FOI coordinator on the institution side in a small institution that doesn't have the resources to be able to dedicate full-time efforts. So sometimes they're learning as well as the appellant and the educational role of the mediator is so fundamentally important. I want to thank you for the important work you do on that front. You mentioned the interpretation bulletins, and that is a new resource of our office that I think parties on both sides have come to appreciate and will appreciate even more because it's a very accessible way of getting educated on how we've interpreted the law or certain provisions.

You mentioned interest-based and rights-based approaches to mediation, and I would love if you can expand on that a little bit. What's the difference between the two?

SS:

When I say that we take both an interest-based and a rights-based approach to mediation, we are doing both approaches sometimes at the same time. If we look at the rights-based approach, basically what that means is we're looking at does the appellant have a right to access the information? So do these exemptions apply to the information? Did the institution properly exercise its discretion to withhold the information or to apply those exemptions? And really, that rights-based approach is a much more of a focus on the actual records and based on past orders, whether or not the individual has a right to that information.

It is important to note that records are often disclosed during mediation. An institution may agree to issue a revised decision to the appellant along with additional records. It may be that circumstances have changed or an exemption was incorrectly applied or the institution has considered relevant orders and the mediator's opinion that an exemption likely won't apply.

Without getting too technical, there are discretionary and mandatory exemptions that an institution can rely on to withhold information. With discretionary exemptions, there's a lot of room for mediation because the institution can also exercise its discretion to disclose information. And if so, then that record can be disclosed.

When we look at an interest-based approach to mediation, what that basically means is what are the underlying interests of the parties? What is the appellant's real interest here? What brought them to our tribunal? What is the kind of information that they're looking for?

It may be that when someone files an appeal, there could be hundreds if not thousands of pages of records that are at issue. So we ask the question, do they really want every single document at issue in this appeal? We work to understand what is their request about? What information are they looking for? And what would satisfy them in terms of resolving the appeal?

They may not want thousands of pages of records, it may be a particular document. It may not even be a record, but it may be that someone has a question, and if the institution is able to answer that question and that may actually satisfy the appellant. The answer may not even be in the records at issue, but the institution has discretion to provide information during a teleconference to an appellant. It may be an apology for something that's happened that someone is not happy with. And the institution is able to provide some background information to an appellant on a situation or why something happened and provide either an apology or perhaps an explanation.

When you think about someone receives a decision from an institution and they just list all of the exemptions at issue and they say, "Your appeal's denied pursuant to sections 14, 15, 16, 17 of the act," for an appellant, that's not really meaningful. So in terms of the interest-based approach, the institution can actually take the time to provide some explanation about the exemptions, why they're claiming those exemptions. They can provide a greater understanding about the records, perhaps without disclosing the substance of the record, but they can give some background or explanation about the record that might satisfy the appellant.

During the interest-based teleconference, a lot of options, other options might be generated. There might be a way to resolve an issue outside of the FOI process. And I think probably the most important thing with the interest-based approach is that it's a quicker process than going through the more rights-based approach where you're dealing with hundreds of pages of records. In fact, the interest-based approach can result in very little disclosure of their records. If someone is satisfied with an explanation or they receive information that they're looking for in another way, that can resolve the appeal. So that's the main difference.

PK:

So if I understand correctly, in an interest-based mediation approach, it's less about the technical interpretation of the act, who's right, who's wrong, but it's really about listening to both parties, trying to understand what underlying issue's at stake, what do they really want? And how can the institution, in many cases, accommodate that without even having to go through the fight of thousands of records?

SS:

Yes. When you're in the middle of a mediation in a teleconference, there are certain kind of phrases, keywords that jump out at a mediator. And one of them is when you hear an appellant say, "All I really want to know is," that's the key there. And that's where you can really build on what is it that they really want and what can we do to provide them with that information? Even if they may not be entitled to a record, there are some exemptions that are legitimately claimed by institutions and they can't get access to that information, but there still may be another way to satisfy them without shutting the door completely. A lot of creative solutions can happen during mediation that's outside of a rights-based approach.

PK:

Can you give us an example of where mediation successfully resolved a freedom of information appeal?

SS:

Our annual report every year, we do publish some success stories of mediations. If people are interested in looking at some examples of that, that could be helpful.

But to give a recent, sort of a concrete example, I had a file recently where it was a request to a township from an individual looking for particular information. It was kind of two different requests. They were seeking information about the activities of the chief building officer over a long period of time, including every site visited, the actions and decisions resulting from those visits. And then they were looking for multiple years of township expenditures, including dates, amounts, and purposes of payments. And all of that together, the township claimed that that request was frivolous and vexatious.

So we had a situation where the appellant appealed that decision. There was a lot of mistrust between the parties. It was a very acrimonious history. There was a lot of preliminary groundwork that was done before we actually had the teleconference. I did share our frivolous and vexatious fact sheet with the parties, with the institution, previous orders with the parties. I worked with the appellant to really get at their underlying interests. What was it that they really were looking for? What kinds of questions were they concerned about? And I was able to share that ahead of time with the township so that they could be prepared to answer those questions during the teleconference.

And then we did have a teleconference with all of the parties. And I think the key to this success of this, which it did resolve actually, but the key was that they had the right parties at the table. So in addition to the CAO, which most municipalities will bring, they also had the people who were experts in the subject matter of the request. So they brought the chief building officer to the teleconference and they also brought the treasurer. So those two individuals could actually answer questions that the appellant had. And they were able to not only answer the appellant's questions, but to assist them with revising the requests and the timeframes to capture the appellant's interests and what they were really looking for.

In the end, they were able to basically revise the request. They were able to significantly reduce the amount of work for the institution, including the search time, the preparation time, and the overall fees that would be required. So it really was a win-win for both parties. They did withdraw the frivolous and vexatious claim and we were able to resolve that appeal.

But it was satisfying because, like I said, they had a long relationship, a long history that was acrimonious. And in the beginning, sometimes parties are very reluctant to participate and they think there's no way that this is going to resolve. And you'll be surprised, when you actually get people together, eventually, during the mediation, people start to break down barriers and break down their walls and start focusing on the problem. It's interesting to see when there's kind of a shift in the process and you can actually see people shift from being protracted and positional and suddenly recognizing, "Oh, there may be an option here or a resolution that is going to benefit both parties." So yeah, that's one example.

We just had a mediator with our office recently resolved an appeal that had over 70,000 pages of records. We kind of celebrated this on our team because that was a huge success. And in that case, it involved a ministry. During mediation, they provided a highly detailed description of the types of records that were at issue and that were denied. They provided their rationale for applying the exemptions and some exclusions. And they gave a thorough description of their search efforts.

And in that case, the mediator gave her opinion based on the legislation and previous IPC orders. And in the end, the appellant was satisfied. That's a very successful mediation when you can resolve a file that had over 70,000 pages of records and otherwise would have gone on to adjudication and would have been extremely time-consuming for the adjudication team to deal with.

PK:

So in that second example, in the end, there was no need to release the 70,000 records?

SS:

Exactly. Those pages were not disclosed, but the appellant did receive other information that they were looking for that was satisfactory to them.

PK:

That makes my heart sing, as you know, because everybody is strapped for resources.

SS:

Exactly, yeah.

PK:

The institutions, the parties, and our office. We too benefit from these success stories because there's only so many resources to go around. I'd like to ask you, how do you think mediation contributes to the efficiency of the FOI process?

SS:

Mediation is the IPC's preferred method of dispute resolution. And if you look at our statistics over the past many, many years, year over year, of all of the appeals that move to the mediation stage, 70% of appeals are fully resolved in mediation every year. That's a huge and significant number of appeals that are completely resolved without the need for a lengthy adjudication process.

In 2023, 68% of our appeals were fully resolved and a further 17% were partly resolved. Again, that's a huge number, very successful mediation statistic for our team.

So it's clear that resolutions enhance the efficiency of the process. There are huge advantages to mediation for both parties. Parties can retain control over the outcome of the process. So rather than it proceeding to adjudication where one party wins and one party loses, we like to say it's a win-win settlement for everyone that may not be possible through adjudication. Adjudication is a more formal adversarial and labor-intensive process, so it really does save a lot of time and a lot of money for the parties. Even if a file doesn't settle completely, it's still very important to go through the mediation process because oftentimes, if it doesn't settle completely, it still significantly can reduce the number of records and exemptions at issue. So the issues can be very clearly identified to assist in the adjudication process.

PK:

I love the examples that you gave because it's a huge tribute to you and to the other mediators of our office on the important role you play in building trust between the parties. And that's not to be underestimated by any means because that is a skill to bring the parties together, build that trusting environment, and allow creative solutions to come forward in good faith.

Most cases, you're dealing with willing, cooperative participants who may misunderstand things or may have miscommunicated or need to be educated, but they're, in large part, acting in good faith and willing and cooperative throughout the process. But sometimes they're not as cooperative. And I'm wondering, in those more difficult cases, what options do you have as a mediator to take control of the process?

SS:

Part of the role of the mediator is to facilitate the process and we are basically in charge of the process. We decide how things will unfold, the type of methods of mediation and that sort of thing.

Unfortunately, we do have situations where perhaps people aren't as cooperative as they could be. We do have some tools that our office has developed to assist us with that. One of them is we do have a code of conduct and it is on our website and it's applicable to all parties. And basically, it just sets out kind of ground rules and rules for how someone should behave during mediation and not only mediation, during all stages of the appeal process. And obviously, people need to be respectful to not just the mediator but to each other and to the process. So we can rely on our code of conduct.

We have just actually recently updated our code of procedure. It's recently been updated for appeals under FIPPA and MFIPPA. It'll be effective September 9th, I believe. So there are some tools that we have in the code of procedure that have been updated to assist us in taking a little bit more control of the process in cases where parties aren't willing to move or maybe they're being obstructionist.

So the updated code allows mediators to move an appeal to adjudication or another part of the appeal process as appropriate, to resolve remaining issues. Where further mediation isn't possible and an appellant isn't willing to move either to adjudication or another stage of the appeal process, but the file isn't going anywhere, the appeal can be closed. Where an appellant does not respond to deadlines and the mediator is unable to contact them after repeated attempts, we are able to close the appeal as abandoned. And if an appellant conducts themselves in a vexatious manner, they can be found to be a vexatious litigant and the appeal can be closed on the basis that it's an abusive process.

Those are some tools that we would hope not to have to use very often. Generally, parties are willing and are acting in good faith to try to resolve issues, and the main thing is we need to ensure that the appeal is moving forward, moving along. And we don't want them to be stuck in at any stage of the process because of parties who are either not participating or not engaging in the process.

PK:

That's a great overview and yes, the revised code is up on our website and will be in effect as of September 9th. So thank you for mentioning that because that's going to be very important for many institutions and Ontarians listening in to this episode.

Shaun, one final question. I would love for you to share your advice for people who are entering the mediation process to resolve an access appeal. What would you tell them is what they should expect out of the process and how should they be preparing for an effective successful mediation?

SS:

We really hope that parties are open to the process and will actively engage in the process. It is important for them to put their trust in the mediators. We have a team of mediators that are extremely knowledgeable. They are experts in the legislation as well as the mediation process. They are willing to listen to parties and to take the time that's necessary to assist the parties in resolving an appeal. Really, it's important to come to the process with a willingness to participate with the assistance of the mediator who will facilitate that process.

For institutions, some things that they should do to prepare for the process is that definitely, they should prepare an index of records wherever possible and provide as much detail, so that index should be shared with the appellant, so that they can understand what the records are and what exemptions are being claimed for those records. Because if you can imagine, an appellant is coming here, often they have no idea what the records even are. All they had is a decision claiming a number of exemptions. So having an index of records is a very important tool that we have in mediation to assist in resolving a number of records at issue.

Like I said earlier, ensure that decision makers are available to participate in the process. And if they're not available to participate at a teleconference on the day of, at least make sure that you have quick access because there's nothing worse than going through a mediation process and all the parties come to a resolution and there's momentum and everyone is happy, and then someone has to go back and get approvals. And that ends up taking weeks, if not months, that can stall the process and really frustrate the process. So you want to build on momentum and try to resolve things as quickly as possible. You have to have decision makers available. And similarly, you have to have the subject matter experts involved in the process who can actually answer questions that appellants may have and are able to actually speak to the records.

PK:

Like the chief building officer in your example.

SS:

Exactly.

PK:

Which was a wonderful example of how successful that was when the expert was at the table, able to answer the questions.

SS:

Exactly. Another important thing, be prepared to provide explanations and to discuss the general nature of the records and maybe the reasons why they're being withheld. You don't have to obviously disclose the substance of a record, but the institution does have an obligation to explain what is being withheld and why, under which exemptions, and provide some rationale for that. So rather than waiting for a file to go to adjudication where you're going to put all of that detail in written representations, if you can do it during the mediation stage, that will assist everyone in resolving it much quicker.

It's also important for institutions to recognize that there is a power imbalance here, right? Appellants, they have no idea sometimes what they're even looking for. What exactly are the records? They might make just a very broad general request because they don't even know what particular document they should be asking for. They may have received partial access, but a majority of their records might be blacked out. So it's important to recognize that the institutions can assist in providing some explanation to them, what is being withheld and why.

For both parties, come prepared to the teleconference. For appellants, that means trying to highlight the specific records that you might be most interested in. So a lot of times, institutions will provide an index of records along with their decision at the request stage. And that's very helpful and I encourage appellants to identify which documents you're most interested in discussing during a mediation.

For both parties, please respond to the mediator in a timely manner. It's very important to respond to deadlines, follow through with your commitments. So if you say that you're going to do something by a certain date, please do that. It's really, really important to keep the process moving along.

Please do give consideration to the mediator's advisory opinion. They are experts in the legislation. They do research and they review orders from our office that are applicable.

And then really make an effort to understand and listen to the other side. Give due consideration to mediation proposals. Really, it's trying to understand where the parties are coming from.

When you think about appellants, we have people who they may be very frustrated with government, with the bureaucracy. They may have a long history with an institution. So when they're coming to our office, it's important that we give them that time and, like I said earlier, the listening to what their interests are is very important for them to feel heard, not just by the mediator but also by the other side.

That's important for appellants to hear sometimes from the institutions that they're often very under-resourced. These are people that are working within very tight timelines. They have 30 days to respond to an FOI request, and they could be dealing with extremely voluminous requests. The request might not be clear, there could be thousands of records. We're dealing in an environment now where most records are digital, so that does pose some extra challenges for FOI staff in processing requests.

When you come to the mediation and you have an opportunity to listen to the other parties, the parties start recognizing, "Okay, let's figure out a way then that we can make this work for both sides." Successful mediation requires the commitment of all parties, and so the role of the mediator is to help build this commitment and to facilitate a resolution of the issues and dispute as best we can.

PK:

Thank you so much, Shaun, for joining us today and sharing your decades of deep, deep experience as a mediator. It's such a refreshing take to listen to people like you helping Ontarians on a day-to-day basis from the front lines, give us the stories of their FOI requests, their appeals, and how the process actually unfolds in reality.

I learned so much about the role of the mediator and all the things you and our other skilled mediators here at the IPC go through to really build that trust between the parties, to educate them and to bring them to mutually satisfying resolutions. And I have just all that much more awe and admiration for you and all the other IPC mediators who bring such experience and skill and passion and dedication to their jobs. So on behalf of all of us, thank you so much for the work that you do.

SS:

Thank you so much for having me.

PK:

To all our listeners out there, we hope you're walking away with a much clearer understanding of the mediation process at the IPC and why it can be such an effective tool for resolving access appeals. If you want to learn more about the FOI and appeals process, I encourage you to listen to another episode of Info Matters from season one, called Demystifying the FOI Process, which gives you an excellent overview. I also encourage you to visit our website at ipc.on.ca to learn more about freedom of information requests and filing an appeal with the IPC. You can call or email our office for assistance and general information about Ontario's access and privacy laws.

Well, we've come to the end of another episode. I want to thank you for listening, and until next time. I'm Patricia Kosseim, Ontario's Information and Privacy Commissioner, and this has been Info Matters. If you enjoy the podcast, leave us a rating or review. If there's an access or privacy topic you'd like us to explore on a future episode, we'd love to hear from you. Send us a tweet at IPCinfoprivacy or email us at @email. Thanks for listening, and please join us again for more conversations about people, privacy, and access to information. If it matters to you, it matters to me.