Mediation is a dispute resolution process where an impartial third party called a “mediator” assists disputing parties in resolving conflict using specialized communication and negotiation techniques. A mediator canvasses the legal issues with parties and attempts to manage parties’ legal positions and expectations so that parties are more likely to settle. All participants in mediation are encouraged to actively participate in the process. Mediation is a “party-centered” process in that it is focused primarily upon the needs, rights, and interests of the parties.
Superior Court of Justice Cases
Chances are, if you are suing your former employer for wrongful dismissal in the Superior Court or you have filed a complaint with the Ontario Labour Relations Board (“the Board”) pursuant to the Occupational Health and Safety Act, you will undergo some form of mediation. That is because Ontario’s Rules of Civil Procedure (“the Rules”) provide that a mandatory mediation session is to be held for actions commenced in certain counties (i.e. Toronto and Ottawa). Not surprisingly, the courts in these counties are the busiest in the Province, and the mandatory mediation program is meant to offload some cases from the judicial docket, so as to facilitate the use of valuable judicial resources more efficiently. Per Rule 24.1, where mandatory mediation is required, a session has to be held within 180 days after the first defence has been filed.
Parties have the power of choosing a mediator from the “mediation roster,” which is a list of mediators that charge a standard rate. Before setting an action down for trial, one of the parties must file a notice stating the mediator’s name and the date of the mediation session. The parties and their lawyers (if the parties are represented) are required to attend the mediation session.
Reprisal applications pursuant to the Occupational Health and Safety Act are also subject to mediation convened by the Board. These mediation sessions are typically not as stringent as those provided for by the Rules. They provide employers and employees an opportunity to present their ‘case’ and settle the dispute before a hearing is held.
In order to encourage parties to settle, negotiations conducted at mediation are afforded settlement privilege protection – a form of confidentiality that ensures that discussions held between the parties cannot be disclosed to a court should the matter proceed to trial. Accordingly, all communications at a mediation session and the mediator’s notes and records are considered to be ‘without prejudice’ settlement discussions.
It is often stated that some 90% of cases settle before proceeding to trial. Mediation offers litigants an excellent opportunity to work towards a settlement which, in most cases, is the most cost-efficient solution. As many people are aware, litigation is expensive, time-consuming and unpredictable. Mediation offers parties an opportunity to gain some control over these factors. Even if parties do not reach a settlement, the disclosure of facts and the presentation of a party’s case at mediation can result in valuable understanding of a party’s prospects of success at trial. Accordingly, parties can use this information to reach a settlement in the time leading up to trial.