How Mediation Works As A Way Of Resolving A Lawsuit

Mandatory mediation is called for in about 95 percent of the cases that happen in Toronto.

There are other courts in Ontario that have mandatory mediation as well, but it is common to go through this process in Toronto before a case goes to trial. Mediation is a way of trying to resolve matters before putting everyone through the expense of a trial.

Probably half the cases I’ve been involved in are settled on mediation. Success often depends on when the mediation occurs. Mediation used to occur right away, close to the point of pleading, before we had the examinations for discovery or even an exchange of documents. But it’s very difficult to assess your case without at least seeing the other side’s documents. Now mediation can occur anytime before the action is set down for trial. It’s mandatory, but it’s up to the parties to decide when.

Some clients don’t like mediation and see it as a waste of money. But as a lawyer, I have to prepare for it. Mediation has to be a minimum of three hours, at least half a day, and the mediator is booked for a minimum of three hours. The parties have no choice as to which mediator is involved: a mediation coordinator simply picks the next mediator on the list. The only requirement is that you file a mediation brief beforehand containing various documents and that you show up.

The downside of this process is that I’ve been to some mediations where the other side clearly has no interest in the process. They file a one paragraph mediation brief and show up for a minute, literally, saying that they have met the requirement. There is no intention to settle.

On the other hand, I’ve been involved in many cases where I don’t think it would have settled if it wasn’t for mediation. Cost is always an issue, and when proceedings drag on, or might go to an expensive litigation, the parties are more motivated to settle.

There are some costs involved in mediation, but it is cheaper than going to trial. There has to be some willingness on both sides to settle, of course. And sometimes, it’s just the weariness of the litigation that can motivate settlement. People want to move on, and mediation is a less expensive and faster way to reach a conclusion to the case.

If you, or someone you care about, is dealing with litigation law issues in the Toronto, Ontario Region, contact Steinberg, Morton, Hope & Israel LLP for a consultation.

This article is taken from a September 15, 2008 interview with David A. Brooker, litigation Lawyer with Steinberg Morton, Hope & Israel LLP, a Toronto Litigation Law Firm and is not intended as, nor should be taken to be, legal advice or opinion. Note that laws vary from province to province. Please consult with a lawyer in your own area to be sure of the laws and specific issues in your own jurisdiction.