Mediation is an informal and completely confidential way for people involved in a dispute or a civil lawsuit to reach an agreement without going to court.
A civil lawsuit is between individuals and/or corporations. It can address disputes about terms of contracts or claims for:
- injury to a person
- damage to their property
- harm to their reputation
In mediation, a neutral third party, known as a mediator, helps the disputing parties communicate with each other and find a solution that works for everyone. The purpose of mediation is not to determine who wins and loses, but to try and resolve the dispute in a non-confrontational way and avoid the risks and costs of going to trial. In situations where the people (called the parties) involved in the lawsuit have an ongoing relationship, mediation is helpful because it encourages problem-solving and improved communications.
Mediators are not judges and they do not:
- take sides
- make decisions
- impose settlements
- give legal advice
Ontario Mandatory Mediation Program
The Ontario Mandatory Mediation Program is designed to help people settle their cases early in the legal process to save time and money. The Mandatory Mediation Program applies in Toronto, Ottawa and Windsor. In these areas or jurisdictions, certain civil lawsuits underrule 24.1of theRules of Civil Proceduremust go to mandatory mediation. Under rule 75.1 of the Rules of Civil Procedure, certain civil lawsuits about estates, trusts and substitute decision matters, where someone is not mentally capable of making certain decisions about their property or personal care, are also referred to mediation.
Mediation process for civil cases
Underrule 24.1, most civil lawsuits in Toronto, Windsor and Ottawa must go to mandatory mediation with the exception of family law cases and matters such as:
- certain cases covered by rule 75.1
- cases mediated under theInsurance Act 258.6 a year or less before the delivery of the first defence, or answer to the complaint, in an action
- Toronto Commercial List cases
- mortgage actions underrule 64
- Construction Act lawsuits, except trust claims
- Bankruptcy and Insolvency Act lawsuits
- lawsuits certified as a class proceeding under theClass Proceedings Act
- lawsuits exempt from mandatory mediation due to a court order (rule 24.1.05)
The mandatory mediation session is conducted by a private sector mediator. Parties can agree to select a mediator from the Mandatory Mediation Program's roster or choose a mediator who is not on the roster.
The mediation must take place within 180 days after the first defence, or answer to the complaint, is filed unless:
- the court orders differently
- the parties agree otherwise and file a consent with the local mediation coordinator within 180 days after the first defence, or answer to the complaint, is filed with the court
Parties can agree on a mediation date or the court may order the date.
Alocal mediation coordinator may assign a mediator from the roster the case if:
- the parties cannot agree on a mediator within 180 days after the first defence is filed
- the mediation has not happened by the deadline agreed upon by the parties or ordered by the court and the parties agree to take the matter to trial
- the local mediation coordinator has not received one of the following documents within 180 days of the first defence being filed:
- a mediator’s report that says the mediation has finished
- a written consent showing the parties agree to postpone the mediation date
- a court order postponing the mediation date
- a Notice of Name of Mediator and Date of Session (Form 24.1A)
- a written document giving notice that the action has been settled by the parties involved
When a mediator is assigned by the local mediation coordinator, the parties will receive a Notice by Assigned Mediator (Form 24.1B) to let them know which mediator has been assigned to them and the date and time of the mediation.
At least seven days before the mediation, the parties must give their mediator a Statement of Issues (Form 24.1C) that contains:
- the issues of the case
- the parties’ positions, interests and pleas
- any other important documents
If a party does not give the mediator a Statement of Issues or go to mediation within the first 30 minutes of the session, the mediator can cancel the session and file a Certificate of Non-Compliance.
The party responsible will have to pay any cancellation fees and could face penalties from the court.
Mediation process for estates, trusts and substitute decision matters
Underrule 75.1, unless the court grants an exemption, certain civil lawsuits about estates, trusts and substitute decision matters, where someone is not mentally capable of making certain decisions about their own property or personal care, are referred to mandatory mediation.
Within 30 days after the last day for submitting a Notice of Appearance (Form 75.4), the person who started the lawsuit must file a motion for directions (Form 75.6) so the court can give directions about the:
- party who has responsibility for the mediation (called the carriage)
- timeframe for the mediation
- parties who need to attend and how they will be notified
- cost of the mediation and how it will be shared by the participants
The parties must select a mediator within 30 days of the court order giving directions.
The mediation is conducted by a private sector mediator. Parties can agree to select a mediator from the Mandatory Mediation Program's roster of mediators or someone who is not on the roster. If the parties do not select a mediator within 30 days, the party who has responsibility for the mediation must immediately file a request (Form 75.1A) with the local mediation coordinator to assign a mediator.
The party who has responsibility for the mediation must give the mediator a copy of the court order giving directions. The mediator will immediately set a date for the mediation. At least 20 days before that date, the mediator will notify everyone attending the mediation where and when it will be taking place.
At least seven days before the mediation, the parties involved must provide the mediator and other parties with a Statement of Issues (Form 75.1C).
Find a mediator
A mediation under Rule 24.1 orRule 75.1 is conducted by a private-sector mediator. Parties may agree to select a mediator from the Mandatory Mediation Program’s roster of mediators or one who is not on the roster.
Both lawyers and non-lawyers are qualified and trained to mediate civil lawsuits. It is important that all parties are comfortable with their mediator. Parties and/or their lawyers are strongly encouraged to contact potential mediators directly to obtain information about the mediator’s:
- training, experience, knowledge about the court process and familiarity with the kinds of issues involved in the lawsuit
- approach to mediation
- fees and expenses
Mandatory Mediation Program rosters
Find a mediator on the Toronto, Ottawa or Windsor rosters. The roster is also available at the Office of the local mediation coordinator and the Superior Court of Justice offices in Toronto, Ottawa and Windsor.
Local mediation coordinators
245 Windsor Avenue
Windsor, ON N9A 1J2
Tel: 519-973-6669 Fax: 519-971-7207
330 University Avenue, 8th Flr
Toronto, ON M5G 1R7
Tel: 416-326-1843 Fax: 416-326-5049
161 Elgin Street, 2nd Flr
Ottawa, ON K2P 2K1
Tel: 613-239-1404 Fax: 613-239-1075
Prepare for mediation
It is important to think about a case realistically and creatively. Before the mediation, parties should consider these questions:
- what are the possible best and worst results of the mediation?
- what is each party trying to accomplish and what is important to them?
- what are the main concerns of the other parties and how can they be addressed?
- are there any solutions that can meet the needs of all parties?
- are there any limits on each party's ability to settle?
- what will happen if the case does not settle at mediation?
Hire a lawyer
A lawyer can help with your mediation by:
- ensuring you meet all the requirements of the Mandatory Mediation Program
- advising you about selecting a mediator
- preparing and submitting the Statement of Issues
- providing you with legal and strategic advice before and during the mediation process
- participating in the mediation process in good faith
- protecting your legal interests in connection with any agreement reached
Find a lawyer
Find a lawyer through:
- Law Society Referral Service
- Law Society’s Lawyer and Paralegal Directory
- Pro Bono Law Ontario (if you can’t afford a lawyer and don’t qualify for legal aid)
Before the mediation begins
The mediator, all parties involved in the mediation and their lawyers must attend the mediation.
You cannot send a lawyer in your place.
The mediation may be held at any location that is convenient and acceptable to all parties, including in-person at the mediator’s office, at the courthouse or by video or teleconference.
Before the mediation begins, the mediator explains the process and reviews the terms of the mediation
For the mediation to go ahead, all parties must have the authority to settle the case or be able to telephone anyone whose approval is needed. Corporations, partnerships or other organizations should be represented by an individual who can make decisions for them.
During the mediation
What people say during a mediation is private information and cannot be used in court.
Although mediation is an informal process, the mediator structures the discussion. All parties can:
- present their sides of the story
- explain what is important to them
- ask questions
The mediator will help the parties discuss settlement options and may meet separately with each of them before or during the mediation session.
Length of the mediation session
The length and number of mediation sessions depend on how:
- complex the case is
- well the parties have prepared
- far the settlement discussions have progressed
- well the process is working
Under the Mandatory Mediation Program, parties do not have to continue a session for more than three hours and the mediator can end the session earlier. If the mediation is not concluded within three hours, with the consent of all parties, the mediator may also continue the session.
After the mediation
After the session, the mediator must complete and file a report on the outcome. The report does not have any information about what happened or what was said at the session.
Agreements made during mediation
Agreements made during mediation:
- must be in writing
- must be signed by all parties or their lawyers
- are legally binding
Agreements made during mediation may resolve some or all of the issues in dispute.
If a party does not follow the terms of the signed agreement, any other party involved in the agreement can ask the court to settle the issues in their favour or continue the legal process as if there had been no agreement.
If parties do not settle their issues
Lawsuits that do not settle at mediation may continue through the court process. Even if the parties do not settle all of their issues, a mediation can be considered successful if:
- the parties get a better understanding of the other side’s position
- some of their issues are settled
- the parties agree on a process to resolve their outstanding issues
Cost and financial assistance
All parties share the cost of mediation equally and pay mediators directly.
Exceptions for sharing costs depend on the type of case and whether one or more parties requires financial assistance.
If the mediator is on the Ontario Mandatory Mediation Program’s roster, fees for a mediation session for up to three hours plus 30 minutes of preparation per party cannot be more than the costs outlined below.
|Number of parties||Maximum fees|
|Two||$600 plus GST|
|Three||$675 plus GST|
|Four||$750 plus GST|
|Five or more||$825 plus GST|
These fees do not include lawyer’s fees. The mediator may also charge expenses that all parties agree to before the mediation begins. However, according to a court ruling, assigned mediators who live outside of the county where the case commenced cannot charge travel expenses.
If the session goes longer than three hours, the mediation can continue at a rate that all parties and the mediator agree to in advance of the session.
If you cannot pay the mediator’s fee, you can apply for pro bono mediation services by applying to the local mediation coordinator under the Mandatory Mediation Program’s access plan.