In today’s legal landscape, mediation has become an essential part of resolving disputes. Ontario’s court system is so overburdened that waiting for trial or even arguing a motion can take months, if not years. Moving a lawsuit forward can be expensive for clients, both in time and money. Mediation, whether mandatory or voluntary, can offer a more efficient path to resolution, making it essential to approach the process effectively to maximize its benefits.

Mandatory Mediation

If your lawsuit is the Superior Court of Justice in Toronto, Ottawa or Windsor-Essex, mediation is mandatory. This means that parties are required to attempt resolution before they may proceed to trial. Mandatory mediation helps reduce the strain on the court system and encourages settlement with disputes that might otherwise drag on for months or even years. Even in situations where mediation isn’t required, the plaintiff of defendant may want to consider participating in this step.

Recommendations for a Successful Mediation

Determine What is Most Important to Your Client: Understanding what is important to the clients can dramatically improve the mediation process. For example, if a party believes they have been discriminated against, it may be meaningful to them to have a mediator from a minority group. Respecting these sensitivities can set the tone for a more productive discussion.

Specialized Mediators: In some cases, a specialized mediator with expertise in a particular area of law can be critical. For example, in complex construction disputes or cases involving technical issues, a mediator familiar with those issues may expedite the process by avoiding the need to explain basic principles.

Preparation is Key: One of the worst things that can happen in mediation is for the mediator to be unprepared. To avoid this, suggest that the mediator agree to meet with the parties prior to the mediation to discuss the matter in detail. Additionally, ensure early deadlines for mediation briefs to give the mediator enough time to review the material.

Consider In-Person Mediation: While virtual mediations are increasingly common since the pandemic, in-person mediation still offers significant advantages. Being physically present allows parties to express their emotions and positions more effectively, which can result in deeper understanding and eventual likelihood of reaching a successful resolution.

A Settlement-Oriented Mindset: When entering mediation, it’s crucial to approach the process with the view that settlement is the goal. While we would never advise our clients to accept an offer that would compromise their values, approaching mediation with a flexible mindset increases the likelihood or coming to an agreement.

Keep Your Evening Free: Evening sessions may be necessary depending on the complexity of the case or the emotional investment of the parties. Don’t let a separate engagement get in the way of reaching an agreement when all parties are at the settlement table.

Prepare a Chart that Updates in Real-Time: Creating an editable chart that tracks the probability of success at trial versus accepting or making a settlement offer is a valuable tool in the mediation process. By making the chart dynamic, you can adjust it in real-time as offers are on the table, allowing you to see the tangible impact of any potential agreement. This approach provides a clear, data-driven perspective on the benefits of settling versus proceeding to trial, enabling more informed decision-making.

Full-Day Mediation vs. Half-Day: While half-day mediations can be less expensive, a full-day mediation may be worth the additional time and cost. A full day allows for breaks, more thoughtful discussions, and gives parties time to reflect on their positions without rushing the process.

Conclusion

Mediation, whether mandatory or voluntary, is a valuable opportunity to resolve disputes efficiently and with lower costs. With proper preparation, the right mediator, and the right approach, parties can achieve positive outcomes without the delays of all of the stages of litigation. If you need legal representation in a lawsuit and you think mediation will be beneficial to you, please reach out to a member of our Litigation team.

Tags: Civil Litigation Law ,  Commercial Litigation, Construction Disputes