Articles

Mediation in a Civil Action in Ontario

November 20, 2019


Welcome everyone this is Amer Mushtaq from
You Counsel. Today, we’ll talk about Mediations in a
Civil Action in Ontario. We’ll cover some basic topics, basic concepts
about mediation, and how do you go about scheduling and attending one. We will begin with our usual disclaimer that
this course is not legal advice, so, if you have any specific questions about your issue
you must contact a lawyer, or a paralegal, or the Law Society of Upper Canada. We’ll cover the topic of what is mediation,
we’ll explain when the mediation is mandatory, and how do you schedule and attend mediation
in Ontario. So, mediation, essentially, is an opportunity
for parties to resolve their dispute without actually going all the way to trial, and you
do that with the help of a neutral third party who can help you figure out your issues and
see if there are any common grounds and then help you resolve that dispute. Mediation could be mandatory, or it could
be voluntary. With respect to voluntary mediation, regardless
of the nature of your dispute you can actually, if parties agree, if you and the other side
agree that mediation is a good idea you can always schedule a mediation and then attend
that. But in certain cases, the mediation is mandatory
in Ontario, so, let’s talk about which cases are those in which the mediation is mandatory. This is defined in Rules of Civil Procedure
specifically Rule 24.1 which talks about mandatory mediation. And when you go through that rule, you will
understand that mediation is mandatory in actions that are commenced in Toronto, Ottawa,
or in Essex County. So, these are the three areas where mediation
is mandatory. Let’s look at the rule quickly, rule 24.1,
Mandatory Mediation it’s in Rules of Civil Procedure I just Googled, “Rules of Civil
Procedure Ontario” and I get this. And then this talks about mandatory mediation,
you will notice that this is the application of this rule and it says the mediation is
mandatory in City of Ottawa, Toronto, Essex. And then there are exceptions to that, so
mediations that are commenced, court actions that are commenced, or application that are
commenced under Rule 75.1, which is state’s, litigation of state’s matters that are not
are not covered in here. The other matters are the matters that are
on commercial list, construction liens matters, bankruptcy, and insolvency, matters under
the Bankruptcy and Insolvency Act. So, there are certain exceptions to the actions
that are not covered under this rule, but most of the actions, civil actions that are
commenced in Toronto, especially in Toronto, Ottawa, and Essex they are required, they
are covered by the mandatory mediation rules. Okay, so as I said, the mediation is voluntary
in any other case, in any other jurisdiction and it’s up to the parties to see if they
see the value of attending that mediation and then scheduling one. Who is a mediator? A mediator as I said is a neutral third party. It’s a person who is not a judicial officer,
a mediator does not work for the government, does not work for the Ministry of Attorney
General, does not work for the court. He or She is a non-judicial officer, generally
speaking, retired judges, sometimes become mediators, retired lawyers they become mediators. A lot of practicing lawyers, senior practicing
lawyers, also practice mediation in addition to their own law practice. And then some of the non-lawyers are also
mediators. These are individuals who have significant
expertise in legal matters; they maybe have doctorate degrees in law but do not practice
law or may not be lawyers in the Law Society of Upper Canada. So, the requirement to become a mediator is
not that you have to be a lawyer, I think it’s the ability to bring parties together,
that’s the crucial aspect of the, the crucial function of the Mediator. Now, just from experience, known lawyers when
they’re dealing with lawyers you know it’s such a sort of territorial thing, that sometimes
it’s hard for non-lawyers to sort of break into the mediation world and be successful. Because of the nuances of issues, because
of how the parties act, but the door’s not closed and I know a number of mediators who
are not lawyers and are good mediators. How do you select a mediator? You can go back to Rule 24.08 and that talks
about how do you select a mediator and I’ll sort of briefly tell you what that rule states. First of all you can agree to, parties have
to agree to a mediator, and they can agree to a roster mediator. A roster mediator, a roster is a list of mediators
that is held by the mediation coordinator, which is a function at the court and that
list has a number of names and you can look up that list, I believe it’s available online
too, you can look up that list, find a suitable mediator and all parties need to agree that
that person will mediate and that’s how a mediator is selected. That’s one way of selecting a mediator. Another way of selecting a mediator is that
you agree or parties agree to a mediator who is not on the roster of the mediation coordinator. And even then, that person can be selected
as a mediator. In fact, most of the mediations that I attend
in my practice, I think 90 to 99% of our mediators are not on the roster, these are private mediators
and they get retained by parties. Simply because they are well known, they are
well respected, and it’s easy for parties to agree on a non-roster well-known mediator. So, having said that, there’s not much difference,
all mediators are equally good with respect to their function. Some know how to resolve disputes better than
the others, but that’s a skill or it’s an art. It hasn’t much to do with the person’s legal
knowledge or legal background. Third option is appointment by the mediation
coordinator. So, this happens when parties are unable to
agree on and on a specific mediator and you know one party proposes certain mediators
the other party rejects them and vice versa. And then at that time one party writes to
the mediation coordinator at the court and says, “can you appoint a mediator?” and
then a mediation coordinator is appointed, so, it’s kind of imposed by the mediation
coordinator. Now, how do you schedule mediation, again? It’s Rule 24.1.09, and it says that after
the first defense is filed, you have 180 days to schedule a mediation. Let’s quickly look at that rule, so you are
clear how a mediation is scheduled. A mediation session 224.1.09 Sub 1, “a mediation
session shall take place within 180 days after the first defense has been filed, unless the
court orders otherwise”. Why it says first defense? Because there could be multiple defendants
and when the first defendant files his or her defense then the clock begins and then
within 180 days you have to schedule a mediation. So, there’s a timeline and parties must follow
that, and there are exceptions to that timeline and that’s provided further down in the rule. You know, one of the instances could be where
it’s better to have mediation conducted after the examination for discoveries are done,
or there is another reason why the mediation should be delayed. And that opportunity is there, but principally,
the mediation must be conducted within a 180 days of when the first defense is filed. In my practice, in employment law, we are
generally able to get a mediation date even sooner than that, sometimes in three to four
months, depending upon the availability of parties and the choice of mediator. With respect to location, normally, you schedule
mediation at a neutral location these are owned and operated by third parties. A lot of court reporters in downtown Toronto
and elsewhere, they provide a location that is available and then you can book that location. You can also attend mediation at the location
of one of the parties … it is not uncommon, and as long as parties are satisfied that
it’s not going to impact the actual conduct of mediation, then for cost saving purposes,
you can actually attend mediation at another parties location. Then you have to decide how long the mediation
should be. Should it be half day, full day, depending
upon the nature of dispute, you schedule the appropriate time. In a majority of employment law cases, half-day
mediation, which is up to three hours is usually sufficient, and the matters usually get resolved,
if they get resolved and if not then there’s no point spending longer than that. But in some instances, full day mediation
is better and two parties can go ahead and schedule full day mediation. You have to keep in mind that scheduling of
mediation, selecting a mediator, the cost of the mediator, the cost of the venue, all
of these are shared by parties equally. So, if there are, you know, two or three parties
in a dispute then all of them will share the cost of the mediation, and that’s why the
cost of the mediator and the cost of location or venue plays, at times, a role in deciding
which venue to attend and which mediator to select. A mediator generally, sort of in employment
law cases, a mediator’s cost could range from $1,000 to $3,000 or more for a half day
of mediation. So, if there are two parties, then the cost
could be half of that for each side. With respect to now, the mediation is scheduled,
the venue has been chosen, and another step that you have to do is you have to prepare
a mediation brief and send it to the mediator and to the other side. A mediation brief is really sort of your argument
why you should be given the remedy that you are seeking against the other side. It’s a bit of an argument, it’s a bit of a
background of the facts, so, that a mediator can get a sense of what the issues are and
he or she can make up his mind about how to go about resolving this dispute for the parties. Rule 24.1.10, again, it’s in the Rules of
Civil Procedure, it provides that parties must provide Statement of Issue. Statement of issue is essentially, you know,
what is this case about? What are the issues that will be decided a
trial? And what is each party’s position about those
issues? You should also send a copy of your pleadings,
which are the Statement of Claims, the Statement of Defense reply, to the mediator so the mediator
can read those pleadings and get a better sense of what the case is about. Similarly, you should sent other documents
if there are important documents that help your case then you should also include those
documents along with mediation briefs, so that the mediator can look at some of the
evidence that is helpful in understanding your position and the corresponding evidence
supporting that. With respect to attendance in mediation, an
important part is that parties who have authority to settle their disputes must attend or at
least be available by phone. Majority of the mediators require that the
person who has the authority to settle, to be physically present at mediation and that
just because once you’re physically present at mediation you understand what’s happening,
you are a witness to what’s going on, and then you are able to make decisions better. If you are off site and only getting information
through your lawyer, then you may not fully understand, fully grasp what the mediator’s
suggestions are, and what are the reasons for the mediator proposing certain things
and so, you miss out an opportunity to properly settle a case because you’re not physically
present. But in any event, the requirement under the
rules is that the person who has the authority to finally say yes to a settlement should
at least be available by phone and to confirm the settlement. All the discussions that happen in mediation
are confidential, they are without prejudice. And the idea is that you can openly speak
your mind at mediation with hopes that the matter could get resolved. So, if you are, if you’re discussing something
that can harm your case at trial you don’t want to hold back at mediation, just so that
you could be harmed later on. So, the idea is you can have an open candid
discussion at mediation and see if the dispute could get resolved and therefore, all the
communication at mediation is considered without prejudice and confidential. With respect to attendance and mediation,
I often tell my clients to not come to a mediation with a fixed mind, because if you have a fixed
mind about your case and you’re not willing to be flexible or move from your position,
then the purpose of the mediation loses its value, the mediation loses its value. So, you have to have some open mind because
you are attending mediation, you will hear perspective from the other side, which may
not be that obvious from the pleadings. There are certain background facts that are
not that clear in the pleadings and so, at mediation you are hearing some information
through the mediator that you may not have known about. Or motivations of the other side for doing
certain things that you may not know, and all of that could change your mind and should
change your mind at mediation so, you should have some open mind at mediation. That is not to say that you completely fold
your position, but have some open mindedness so, that you can understand the other party’s
position better. Mediators have different roles and different
styles. Mediators job primarily is to help parties
to resolve this matter, so, they will listen to your case, they will point at deficiencies
in your case, they will do the same exercise in the other room with the other party, look
at their case, point out the deficiencies, make some suggestions. Some mediators are too involved in all of
this process; they are a bit more aggressive, they will take you to task if your arguments
have no validity. Some mediators are more, sort of, laid back
in that sense, that if you are making an argument that does not make sense they will raise it
but not sort of confront you. So, every mediator has different style but
their function is the same, all of these mediators are trying to resolve the dispute between
parties, so that they can save their money and costs and get a resolution that, you know,
the parties have control of as opposed to when you go to a judge and the judge decides
at trial, then the parties have no control in terms of what the decision will be. So, mediator’s function is to emphasize
that parties have the control in carving a dispute that is acceptable, not the best solution,
but acceptable to parties, so that they can move on. So that’s the mediator’s role and they have
different styles. What parties, when they’re attending, they
should keep in mind that the discussions that are happening in mediation, the settlement
offers that are going back and forth they’re not in a vacuum. They are based on a certain legal framework
and you will hear that from the mediator, what that framework is from your counsel,
what that framework is, and then within the context of that framework the cases are settled. Normally, at mediation, just so you know how
physically the parties are distributed, each side is in a separate room. You and your lawyer will be in one room, the
other party with their lawyers will be the in the other room, and the mediator will go
back and forth between the rooms, take the offers come back with the offers, counteroffers,
and try to resolve it. Because if you put all the parties in one
room and they all are, you know, hard settled on their positions, then it’s hard for parties
to come to an agreement. So, it’s sometimes it’s better to keep them
apart and let the mediator do his or her job to sort of try to resolve the matter. Sometimes, some mediators have this style
that at the opening of mediation they have a joint session in which all parties are present
in, which the mediator explains the process, and hears briefly from the parties and usually
that mediation session doesn’t last more than 10 minutes. But the real stuff about mediation begins
when the parties are sent to their separate rooms and the mediator goes back and forth
and tries to resolve the dispute. Keep in mind that mediator has no power to
award any judgment, the mediator’s role is simply to facilitate, so, mediator cannot
impose a resolution on any party. It’s a non-binding process. Where the mediator will make suggestions and
what you want to keep in mind is that a mediator’s suggestions are very, very, important. Because you have received an opinion from
your lawyer, the other side has received an opinion from their lawyer and a mediator is
a person who is neutral … who doesn’t care about the outcome of your case, who has no
stakes in your case, and who is a senior lawyer or a senior judge, or retired judge who has
his or her own views about your case based on the information that they have received
from you and they will provide an opinion to you. And that opinion should be taken seriously
because it’s an opinion of a person who is not your lawyer but who is as close to a judge
as you can get, before you actually go to a trial. So, you take that opinion seriously whether
you accept it or not it’s is your call but at least you should consider that. The second part about the opinion, which I
normally tell my clients, is that even though they should consider a mediator’s opinion
seriously, they should still take it with a grain of salt because the mediator’s ultimate
job is to get a resolution. So, a mediator may put his or her opinion
a bit aggressively, a bit too strongly and so, but at least you have that information
and you can discuss with your lawyer in more detail, the points that mediator has raised
so, that if there is another opportunity to resolve that matter later on, you can keep
those points in mind. So, what happens if your case settles and
in a majority of cases it does, cases do settle. So, your case is settled, now you have to
do some paperwork and that paperwork involves preparing minutes of settlement which basically
states what are the terms and conditions of the settlement, what is the agreement, it’s
reduced to writing parties sign it, and then if there are releases, one party’s releasing
the other or there’s are mutual releases those are prepared and signed. So that the settlement is actually put in
writing it’s signed, and the documents are binding, so that the end of the mediation
process when a settlement occurs and obviously, if the settlement doesn’t occur then you move
on to your matter going further towards pretrial and trial. What is the conclusion, what you should keep
in mind is that mediation is a very valuable step. The majority of the cases do settle at mediation,
and in employment law situations, I can tell you that over 95% of the cases do actually
settle in mediation. So, mediation is a valuable step and you should
put in some effort and attending at mediation and making sure that you understand all the
arguments and also you want to keep in mind that the value of mediation is with respect
to cost/benefit analysis too. By the time parties get to mediation the costs
are not significantly high and so, as soon as you’re out of mediation your costs can
spike really significantly and so, there may be value in resolving your dispute at mediation. I hope this gives you a sense of what mediation
is about, when do you attend mediation, and how do you attend mediation with respect to
your mindset and your strategy? If you have any questions or comments or if
there’s anything further that you would like us to cover with respect to mediation or any
other topic please do contact us and we look forward to seeing you in the next lecture. Thank you.

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