Mediation: What is it and How does it Work?

Consistent amongst various litigation processes is an alternative dispute resolution process known as mediation. Whether your matter is at the Ontario Superior Court of Justice, the Human Rights Tribunal of Ontario, or another provincial or federal court or tribunal, mediation will likely be a step in the process.

As it is such a common stage of legal proceedings, all parties should have be aware of what to expect during the process.

What is Mediation?

Mediation is a private process in which a neutral third party meets with both parties to facilitate a resolution between them.

A mediator can be beneficial in bridging the gap between the parties by focusing on interests rather than fixed positions. If requested by the parties, a mediator can also provide an objective assessment of the strengths of their matter, which can shed light as to whether one side or another, or both, needs to adjust their expectations.

While settlement negotiations typically continue throughout a legal matter (sometimes right until the eve of a trial or hearing), mediation can bring about an early resolution for the parties involved.

When and How Does Mediation Occur?

Mediation typically occurs after the close of pleadings in most cases, and is mandatory for civil actions at the Ontario Superior Court of Justice which have been issued in Toronto, Ottawa, and the County of Essex, with certain exceptions. However, mediation is also useful before litigation, particularly when parties are serious about settling the matter without commencing the litigation process.

The parties should agree to a mediator, date, and place when scheduling their mediation, and are responsible for costs of the mediator (unless one party agrees to cover the whole cost). If the parties cannot agree to a mediator, or as a more affordable option, a roster mediator may be chosen. If a party requests that the court choose a roster mediator, it is best if the mediator has experience in the same area of law as the dispute itself.

On the other hand, mediation at the Human Rights Tribunal of Ontario is optional and must be agreed to by the parties. Here, the parties do not choose their mediator, but the parties also do not have to pay for the cost of the mediator.

Typically, on the day of the hearing, the parties will get another shot at mediation before the hearing commences. The mediation is usually conducted by the same Vice-Chair who will be hearing the matter—however, during the mediation process, the Vice-Chair mediator will not weigh evidence or assess credibility, and cannot be called as a witness during the hearing.

What to Expect at a Mediation?

A mediation session can either be conducted via telephone, virtually, or in person, with each method having pros and cons. Mediations can involve the parties being together in one room or being split up with the mediator shuttling between the two sides. Typically, for more sensitive matters and sometimes for safety reasons, it is best that parties remain in separate rooms.

Mediation is not a place to argue the facts and “present your case” to the mediator, who will not make decisions on behalf of the parties. However, some clients still find it useful to explain their side of the story and what the case means to them. The mediator typically uses the information provided to assist with resolving the matter, and will not share information to the other side if directed not to do so.  

As mediation is a private matter, it typically involves an agreement to confidentiality between the parties as well, and offers made at mediation are protected by settlement privilege. If the matter does not settle, the mediator cannot be called as a witness for the trial or hearing. 

If the mediation leads to a resolution, the matter will end there. Otherwise, the matter will proceed to the next stages.

The Benefits of Mediation

Engaging in a mediation during a legal proceeding has several benefits. As mentioned above, a mediation is private and can be confidential, therefore, the objective assistance of a third party can be key to resolving the matter.  Mediation also allows parties to save on costs and time by avoiding the further steps of litigation.

Parties can also be creative with respect to their offers at mediation, as certain remedies are not available at a court or tribunal.

The mediator does not make any decision that will bind the parties during a mediation. At all times, it remains up to the parties to reach a resolution that both sides find fair and acceptable. Even if the matter does not settle at mediation, the process itself can help narrow down issues of a complex matter, which is beneficial as litigation progresses.

Considering the potential benefits, parties should always enter mediation with a mindset of negotiating in good faith.

Contact Us for Help

If you have an upcoming mediation or are wondering whether mediation is right for you in your matter, our team of experienced legal professionals at Achkar Law can help. Contact us by phone toll-free at 1 (800) 771-7882 or email us at [email protected] and we would be happy to assist.

If you are a small or medium-sized company looking for full-service support, visit our CLO program page for our strategic solutions.

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Disclaimer: This blog is not intended to serve as, or should be construed as legal advice, and is only to provide general information. It is in no way particular to your case and should not be relied on in any way. No portion or use of this blog will establish a lawyer-client relationship with the author or any related party. Should you require legal advice for your particular situation, fill out the contact form, call 1-(800)771-7882, or email [email protected].

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