Conflict is an inevitable part of life. It can arise in different situations, ranging from personal misconduct to business disputes. In Ontario, as in other places, resolving conflicts often involves complex legal processes. These processes cost money, consume time, and can be emotionally taxing for all the parties involved. Luckily, there is a more efficient option that may be a more pragmatic and harmonious way to address disputes: mediation.
Mediation is a process by which individuals and organizations can come to a mutually acceptable resolution to their conflicts outside of the courtroom. Often, an impartial third party called a mediator helps the parties negotiate and work towards a resolution or settlement of their dispute. In this article, we will explore the importance and benefits of mediation in Ontario and describe a typical mediation process.
Importance of Mediation
Sometimes, parties involved in a dispute have continuing relationships, whether the counterparts are family members, business partners, friends, colleagues, or neighbors. Traditional litigation, with its confrontational procedures, is likely to exacerbate tensions, increase differences, and damage relationships. Mediation promotes open communication and encourages parties to find mutually acceptable conflict resolutions. In that way, it can help to preserve the parties’ relationship.
Importantly, mediation can save on the time and cost associated with a typical lawsuit. Ontario’s court system is increasingly overloaded, which can result in long delays. Mediation offers a faster and more time-efficient process, allowing the parties to have better control over the timeline of their dispute process. This can be especially important in situations where prompt resolution is needed, such as in family issues or business disputes. In some cases, mediation may be a mandatory part of the litigation process.
Benefits of Mediation
Conducting a mediation, rather than litigating the case through a traditional judicial mechanism, has several advantages:
- Efficiency: Mediation usually takes less time than traditional litigation. It allows parties to schedule sessions at their convenience and does not involve long court delays.
- Cost Savings: Litigation can be a challenge as legal fees, court costs, and other expenses accrue. Mediation is often more affordable and is accessible to a greater number of individuals and organizations. This affordability can be especially attractive in an economically diverse province such as Ontario.
- Customized Solutions: Mediation allows parties to craft solutions that are tailored to their specific needs and concerns. This level of customization can lead to more satisfying and sustainable outcomes, as opposed to one-size-fits-all approach.
- Reduces Emotional Strain: Litigation can be hard emotionally. Its adversarial nature often exacerbates the stress and anxiety of the people involved. Mediation, on the other hand, fosters a more cooperative atmosphere, reducing emotional toll.
- Preservation of Relationships: Maintaining relationships is vital in many disputes, particularly within families or business partnerships. Mediation encourages open communication and collaboration, making it more likely that relationships can be preserved or even strengthened through the resolution process.
- Confidentiality: Typically, all discussions and documents exchanged during mediation are confidential. The confidentiality of mediation is a significant advantage. Participants can speak freely without fear of their statements being used against them later, which encourages more open and honest discussions.
Mediation, even when it doesn’t lead to a complete resolution of a dispute, offers several advantages. It provides insight into your opponent’s case, helps you identify the key issues in contention, and can sometimes lead to a reduction in the matters to be addressed at trial.
Navigating the Mandatory Mediation Process in Ontario
While mediation is typically voluntary, it is sometimes mandated by law. In Ontario,
‘s provincial law prescribes a Mandatory Mediation Process which requires parties of civil lawsuits to participate in mediation before proceeding to trial. This process was designed to reduce costs and litigation delays and promote fair resolutions. Exemptions to mandatory mediation are outlined in rule 24.1 of Rules of Civil Procedure, and include family law cases and cases on the Toronto Commercial List
When a civil lawsuit is filed in Ontario, the court mandates the involved parties to attend a mediation session with an accredited mediator. Mediators are selected from a roster of professionals recognized by the Ontario Superior Court of Justice. A local mediation coordinator may assign a mediator from the roster in certain cases (for instance, where the parties cannot agree on a mediator within 180 days after the first defense is filed).
The mediation session provides a structured space where parties can discuss their issues, present their arguments, and work towards a resolution that is mutually acceptable. The mediation should occur within 180 days from the initial filing of the first defense or response to the complaint, unless:
- The court issues an alternative directive.
- The parties mutually agree and submit a consent form to the local mediation coordinator within 180 days from the submission of the first defense or response to the complaint with the court.
What Happens in a Typical Mediation?
- Initiating the Process;The mediation process in Ontario begins when one of the parties contacts a mediator or a mediation service provider, and the mediator will then contact the other party to determine if they are willing to participate.
- Pre-Mediation Consultation; Before the mediation session, the mediator may conduct consultations with each party. These sessions help the mediator understand the issues at hand and establish a framework for the mediation process.
- Mediation Session: During the mediation session, both parties, along with the mediator, agree to work in a neutral and private setting. The mediator typically opens the mediation as a joint session involving all parties and their lawyers. The mediator provides an overview of the process and sets the ‘ground rules’ for the mediation. After the joint meeting, the parties are typically physically separated into individual rooms and the mediator will go back and forth between the rooms and have a private discussion with each party. The mediator will explain that any information shared will stay confidential and will not be shared with the other parties unless instructed otherwise. This is to promote the parties to speak frankly and openly. In some cases, the mediator may bring the parties back into one room; however, this is not typical. The mediator guides the discussion, ensuring that it remains constructive and focused on resolving the dispute. Mediation proceeds until the parties reach a mutually agreeable resolution, adjourn to a later date, or decide to terminate the mediation. Mediation can last anywhere from a couple of hours to several days.
- Settlement Agreement: If the parties reach a settlement, the parties work to formalize the final agreement. The process of finalizing a settlement involves several key steps. First, the settlement agreement should be documented in written minutes of settlement. Additionally, the parties may need to sign a release. It is essential to arrange for the payment of settlement funds, which may involve a lawyer holding these funds in their trust account. An order to dismiss or stay the legal proceedings or enter a judgment might also be necessary.
- Additional Considerations: In some cases, parties may need to take further steps to implement the agreement. In cases where a party is under a disability, court approval of the settlement could be required. Furthermore, specific legislative requirements, such as notice and approval procedures for class action settlements may apply.
Mediation: How Roberts & Obradovic Can Help You?
When retaining a lawyer or a mediator to assist you during mediation, it is important that you feel comfortable and confident in their abilities. You should gather information on their: (1) training, expertise, understanding of the court process, and familiarity with the specific issues relevant to the lawsuit; (2) mediation approach; (3) fees and any associated expenses; and (4) seek references or past client experiences.
At Roberts & Obradovic Law Firm, we serve clients in all forms of commercial conflicts that arise during the course of business. Our priority is to enable clients to resolve their disputes in the most timely and cost-effective means possible. We have trial and appellate experience and advocate on clients’ behalf in high-end commercial litigation and arbitration proceedings. We are certified mediators and competent lawyers. We don’t take every file, so that we can bring personal attention to each client with a focus providing pragmatic and targeted advice to represent your interests, protect your position and pursue the most appropriate action to achieve results for your business.
Contact us today at (647) 724-5179 or complete our contact form to schedule a complimentary consultation with our skilled legal team. Our commitment is to understand the nuances of your situation and assist you comprehensively throughout the mediation process