With all the buzz surrounding alternative dispute resolution, you might wonder: how does mediation work in Ontario?
Mediation is an alternative to resolving your dispute in court. In mediation, an impartial mediator listens to the parties arguments and helps them settle their dispute. In this blog post, we’ll discuss how mediation works in Ontario and answer common questions regarding the mediation process.
Mediation – like other alternative dispute resolution processes – offers benefits that are appealing to some clients. For example:
In certain cases, parties are required to attend mediation before the court will give them a trial date. Ontario’s Mandatory Mediation Program requires most parties in civil cases located in Toronto, Ottawa, and Windsor to attend mediation. A mediation subject to the Mandatory Mediation Program must take place within 180 days of the first defence being filed unless a court orders otherwise.
Even if the Mandatory Mediation Program does not apply, you can still seek mediation. Below, we will provide a brief overview of how mediation works in Ontario.
Given the flexibility that comes with participating in mediation, each mediation session can look a little different. And, depending on the type of case, the mediation process may be subject to specific processes or rules. It’s important to consult with an experienced lawyer to understand how the mediation process will play out in your specific situation.
If the parties are not required to attend mediation, mediation is typically scheduled in circumstances where all parties involved agree to mediate. The parties will select a mediator and schedule a mediation date.
There are lots of resources online for selecting mediators, including Ontario’s Mandatory Mediation Program roster and the Canadian Academy of Distinguished Neutrals – Ontario Chapter. You will want to select a seasoned mediator with experience in the area relating to your dispute.
We’d be remiss not to mention that Ian Stauffer, a partner at Tierney Stauffer LLP, is one of Ottawa’s most respected and experienced mediators. He has been involved with over 2,000 civil dispute mediations, ranging from neighbour disputes to multi-million-dollar lawsuits. To learn more about Ian and check his availability for mediation, review his biography on our website.
Hiring a lawyer with mediation experience is important for ensuring you can navigate the mediation process smoothly. Before mediation, you will need to think about your interests, what you’re hoping to get out of the mediation process, and what you’re willing to settle for in mediation. To that end, you’ll need to think about everything from your “best-case scenario” to your “bottom line”.
You’ll also need to think about the strengths and weaknesses of your case, whether you will need any external evidence, like expert reports, and whether you need any information from the other parties to better prepare for mediation. An experienced lawyer will create a mediation strategy and guide you through this process.
In our digital era, mediation can happen in person, over the telephone, or even virtually.
Beyond determining where the mediation will be held, you’ll want to consider other factors. For example, in some mediations, all of the parties will be present in the same space (whether in person or virtually). In other cases, the parties may be separated, and the mediator will move between spaces to relay information between them.
As we mentioned above, the mediation process can look different between cases. Typically, at the start of the mediation, the parties may be asked to sign a confidentiality agreement. The parties will then be allowed to explain their side of the story and outline their position. The mediator may also meet with each side privately to better understand their positions and the issues at play.
From there, the parties will work to resolve their dispute with the mediator’s help. This may involve taking steps to understand the other side’s position, clarifying their position, and negotiating a settlement. The mediator, in some cases, may provide suggestions to the parties, such as potential resolutions or their opinion on the strengths and weaknesses of their case.
If the parties do not agree through mediation, they will carry on with their dispute. Depending on how the case plays out, they may ultimately still end up in court. However, even if the dispute is not resolved through mediation, it can still be useful as it helps the parties understand each other’s positions and narrow down issues before trial. In some cases, the parties may be able to settle the case on their own after mediation!
What’s important to note is that you can’t use mediation offers against the other party later. Mediation offers and documents prepared for mediation are protected by settlement privilege, meaning they are presumed to be private and cannot be used against the other party at trial.
If the parties settle through mediation, then steps will be taken to make the mediation legally binding in Ontario. After settling a matter through mediation, the parties will sign a document called “minutes of settlement” outlining the terms of the parties’ agreement to resolve the matter.
In some cases, the parties will apply to the court to convert the minutes of settlement into an enforceable court order.
Tierney Stauffer LLP can assist you if you require professional mediator or arbitrator services or want to pursue a matter through alternative dispute resolution. Our firm has vast experience representing clients in alternative dispute resolution, and we also offer highly experienced professional mediation and arbitration services. Call us at 1-888-799-8057 or contact us online to discuss your matter with an experienced lawyer.
