Category: Mediation

Mediation has become an increasingly popular alternative to litigation in Ontario due to its efficiency, cost-effectiveness, and ability to preserve relationships between disputing parties. One of the fundamental principles that make mediation successful is confidentiality. When parties enter mediation, they must feel assured that their discussions, documents, and negotiations will not be disclosed outside the process.

Confidentiality in mediation is crucial in fostering open communication, encouraging compromise, and promoting fair settlements. Parties considering mediation must understand what is protected under confidentiality agreements, how confidentiality is maintained, and the implications of breaches.

The Legal Framework of Mediation Confidentiality in Ontario

Ontario law recognizes the importance of confidentiality in mediation, with protections established through statutes, common law, and contractual agreements. The Ontario Rules of Civil Procedure outline the confidentiality obligations in mandatory or court-ordered mediation, with each confidentiality requirement including the following wording:

All communications at a mediation session and the mediator’s notes and records shall be deemed to be without prejudice settlement discussions.

The Ontario Evidence Act also provides specific protections by restricting the admissibility of mediation communications in court proceedings.

Mediators typically require parties to sign a confidentiality agreement before beginning the process. This agreement outlines what can and cannot be disclosed, reinforcing the legal framework and ensuring all participants understand their obligations. These agreements also stipulate that neither party may use information disclosed during mediation in subsequent legal proceedings unless an exception applies.

What Is Protected Under a Mediation Confidentiality Agreement?

Mediation confidentiality agreements protect various aspects of the mediation process, ensuring participants can freely express their concerns and explore potential resolutions without fear of repercussions. These agreements generally cover verbal and written communications, mediator notes, settlement offers, and any admissions made by either party during the discussions.

Statements made during mediation are typically protected from being introduced as evidence in court. This protection allows parties to engage in honest discussions and explore potential settlements without concern that their words will be used against them later. Similarly, any documents prepared specifically for mediation, including mediator summaries and confidential position statements, are protected under confidentiality agreements.

While mediation confidentiality agreements provide broad protections, there are exceptions. If parties reach a final settlement agreement, the terms of that agreement are usually enforceable and can be disclosed as needed to implement the settlement. Additionally, confidentiality may not apply in cases involving fraud, threats of violence, or other situations where disclosure is legally mandated.

Fostering an Environment of Open Communication

Confidentiality plays a pivotal role in creating a safe and productive mediation environment. When assured their statements and negotiations remain confidential, parties are more likely to engage in open and honest discussions. This openness facilitates problem-solving, encourages collaboration, and increases the likelihood of reaching a mutually acceptable resolution.

Setting Expectations of Confidentiality

Mediators play a crucial role in establishing this secure environment. They set clear expectations regarding confidentiality at the outset, ensuring all parties understand that mediation is a confidential process aimed at resolving disputes, not attributing blame. By reinforcing these principles, mediators help build trust among participants, allowing them to focus on finding common ground rather than strategizing for litigation.

Private Sessions (Caucauses)

Another aspect of fostering a safe space is the use of private sessions, also known as caucuses. In these sessions, mediators meet with each party individually to discuss their concerns in a confidential setting. These discussions often help mediators understand each party’s underlying interests and explore potential solutions without the pressure of the opposing side’s presence. Since these private conversations remain confidential unless the party consents to disclosure, participants are more likely to share vital information to facilitate resolution.

The Implications of Breaking Confidentiality

While confidentiality is a cornerstone of mediation, breaches can have serious legal and practical consequences. If a party discloses confidential information without consent, they may face legal repercussions, including potential claims for breach of contract or sanctions imposed by the court. Additionally, unauthorized disclosures can undermine the mediation process, erode trust, and make it more challenging to reach a resolution.

Courts in Ontario generally uphold mediation confidentiality and are reluctant to admit mediation communications as evidence. However, there are circumstances where confidentiality may be set aside. For example, if a party alleges duress, fraud, or undue influence during mediation, a court may allow limited disclosure to determine whether the settlement agreement was reached fairly. Similarly, if there is a concern that mediation was used to conceal unlawful activity, such as financial fraud, confidentiality protections may not apply.

In addition to legal consequences, breaches of confidentiality can harm relationships and damage reputations. Mediation is often used in family disputes, employment conflicts, and business disagreements where ongoing relationships are essential. If one party violates confidentiality, it may create long-term distrust and hinder future cooperation. Understanding these risks reinforces the need for strict adherence to confidentiality agreements.

Best Practices for Ensuring Confidentiality in Mediation

Participants should take proactive steps to safeguard the process and maximize the benefits of confidentiality in mediation. Engaging experienced mediators who emphasize confidentiality, signing well-drafted confidentiality agreements, and understanding the scope and limits of confidentiality protections are all critical components of a successful mediation strategy.

Parties should also avoid discussing mediation proceedings with outside individuals not bound by the confidentiality agreement. If legal or financial advisors must be consulted, parties should ensure these professionals also agree to maintain confidentiality. Additionally, taking precautions with written materials, such as securely storing mediation documents and avoiding public discussions about the mediation, helps prevent inadvertent disclosures.

Mediators must also adhere to ethical standards that promote confidentiality. They should avoid conflicts of interest, maintain neutrality, and establish clear guidelines for handling confidential information. By doing so, they contribute to an effective and legally sound mediation process.

Contact Dina Mejalli-Willis at Willis Business Law for Trusted Mediation Services

Dina Mejalli-Willis of Willis Business Law has extensive experience as a mediator and is highly skilled in fostering productive, meaningful mediation sessions. She understands the importance of confidentiality and building trust through mediation. Dina works to get to the heart of each dispute quickly and knows how to identify each party’s genuine concerns.

Dina offers half-day and full-day mediation sessions for a variety of disputes. To learn more about her mediation services, please feel free to contact us online or call 519-945-5470. You can also easily book your mediation session today by using Dina’s online scheduling calendar.

Mediation is an increasingly popular alternative dispute resolution (ADR) method in Ontario. It involves a neutral third party (the mediator) facilitating communication and negotiation between disputing parties and their counsel. It allows parties to discuss their issues outside of a courtroom, resulting in a cost-effective and time-efficient process while encouraging an amicable resolution. However, while mediation offers several advantages, it is essential to understand the potential drawbacks before deciding if it is the right path for you.

This blog post will explore mediation as a form of alternative dispute resolution to traditional litigation and will consider some key pros and cons of mediation.

What Is Mediation?

Mediation is a popular and generally voluntary form of alternative dispute resolution. It provides a structured process for parties to resolve conflicts without resorting to litigation. Mediation typically occurs at the close of pleadings in most cases and is a useful tool to explore prior to litigation, especially when the parties are serious about reaching a settlement without engaging in litigation.

Mediation involves a neutral third-party mediator who facilitates communication and negotiation between the disputing parties, guiding them toward a mutually agreeable solution. By focusing on interests rather than the parties’ fixed positions, a mediator can help close the gap between them.

Unlike arbitration, where a neutral third party makes a binding decision, mediation empowers parties to maintain control over the outcome, fostering a collaborative and potentially relationship-preserving approach to dispute resolution. The goal of mediation is to achieve a mutually acceptable agreement between the disputing parties that can include a resolution and settlement of legal claims. In many cases, mediation is an effective way to avoid unnecessary time, expenses, and legal fees and remove the uncertainty of litigation while still addressing and resolving the key issues at hand.

Understanding the Pros and Cons of Mediation

Depending on the circumstances of a case, it is essential to weigh the pros and cons of participating in mediation before engaging in it. Some key considerations include:

Pros of Mediation

• Cost-effectiveness: Mediation is generally less expensive than litigation. Since court filing fees, legal representation costs, and court time can significantly escalate legal expenses, mediation generally offers a more affordable option to the disputing parties.
• Time-efficient: The mediation process is typically shorter than traditional litigation, allowing parties to reach a resolution in a matter of sessions, which can save time and reduce stress.
• Control: Mediation empowers the parties involved to have control over the outcome. Unlike litigation, where a judge makes decisions, parties in mediation actively participate in identifying key issues and finding mutually agreeable solutions. Parties can also be creative with their offers at mediation, as they may decide on a remedy that would not be available in court. Parties are also empowered through their ability to select and agree upon the mediator and can schedule a mediation session that works for them.
• Relationship preservation: Mediation helps reduce contention between the parties and can help them maintain or improve relationships. This can be especially true in disputes involving family, business partners, or neighbours, as the process fosters open communication and collaboration.
• Confidentiality: Mediation proceedings are typically confidential, allowing parties to discuss sensitive matters openly without fear of public disclosure.

Cons of Mediation

• No guaranteed outcome: While mediation leads to successful resolutions in many cases, an agreement will not always be reached. If mediation fails, parties may need to resort to litigation.
• Potential for power imbalance: A significant power imbalance between parties can affect the mediation process. For example, if a party dominates the discussions, it may result in an unfair outcome.
• No binding decisions: Unlike arbitration or traditional litigation, a mediator cannot impose a decision on the parties or force them to agree to a resolution. Instead, both parties must agree to the settlement terms on their own accord.
• Emotional: Mediation can be emotionally demanding, especially in disputes involving high conflict or complex issues. It requires parties to engage in open and honest communications willingly.
• Cooperation required: Mediation relies on both parties’ willingness to participate actively in the process in good faith. If one party is unwilling to compromise or engage constructively, the process may be less effective, and litigation may still ensue.

A successful mediation requires thorough preparation by both parties, practical negotiation skills, and an understanding of the legal framework surrounding the dispute. Parties unwilling to compromise or negotiate can reduce the chances of mediation achieving a successful outcome. However, with the help of an experienced lawyer, disputes can be resolved efficiently and cost-effectively through the mediation process after one or several sessions.

Is Mediation Right for You?

Mediation can be a suitable option for a variety of disputes in Ontario, including:

• Family law matters (such as property division, parenting arrangements, and divorce);
• Employment disputes (involving termination or wrongful dismissal claims);
• Business law and commercial disputes (such as contract disputes and partnership breakdowns); and
• Personal injury claims.

In Ontario, most civil actions at the Ontario Superior Court of Justice that have been issued in Ottawa, Toronto, or Essex County require mandatory mediation, aside from family law cases and certain other matters.

Mediation offers several advantages, making it an attractive option for resolving disputes in Ontario. However, it is crucial to weigh the pros and cons carefully and consider your case’s specific circumstances before deciding on mediation. Consulting with a legal professional can help determine if mediation is right for you.

Schedule Your Mediation With Dina Mejalli-Willis at Willis Business Law in Windsor-Essex County

Dina Mejalli-Willis is the Managing Partner of Willis Business Law and has over 19 years of civil litigation experience. Her years of litigation work help her be a skilled, effective mediator, enabling her to resolve disputes strategically while minimizing conflict. She also offers a mediation follow-up service to explore additional settlement opportunities when an initial mediation is unsuccessful. To schedule a mediation with Dina Mejalli-Willis, call 519-945-5470 or use Dina’s online scheduling calendar.

To speak with a member of our team regarding your business or employment law dispute, complete our online form or call us at (519) 945-5470 to learn how we can assist you.

Using a mediator who understands the core issues can make all the difference in maximizing a mediation effort between disputing parties. A skilled mediator can also help facilitate a mutually beneficial settlement between the parties. At Willis Business Law, our managing partner, Dina Mejalli-Willis, proudly offers mediation services to suit your unique needs.

Known for her efficiency, fairness, and diligence, Dina makes her best efforts to help parties reach a satisfactory agreement at the conclusion of mediation. However, despite best efforts, parties may not always be able to mutually agree on settlement terms within the scheduled mediation time frame. However, this may not always be the end of the road. Parties may still be able to mediate their issues when they take advantage of Dina’s post-mediation follow-up service.

Dina Mejalli-Willis Offers Post-Mediation Meetings

Dina encourages parties to resolve disputes outside of the courtroom. She draws on her extensive experience to bring a fresh and insightful perspective to the table. She also leverages her investigative skills to help bring underlying issues and the parties’ respective needs to the surface. By doing so, Dina can help parties get to the root of the problem and see the other side’s perspective. To learn more about what sets Dina apart as a mediator, click here.

However, in cases where the initial full-day mediation is “unsuccessful,” Dina provides the parties with an optional one-hour post-mediation meeting. In most cases, this follow-up communication will occur approximately two to three months after the initial mediation. The intention behind post-mediation contact is to allow the parties willing to continue settlement discussions additional time to explore further settlement opportunities.

It is essential for parties to understand that the specific benefits of post-mediation communication may depend on the context of the mediation, the parties’ needs, and the nature of the dispute.

The Benefits of Post-Mediation Follow-Up Contact

If issues remain unresolved by the end of a full-day mediation, post-mediation contact allows the parties to remain proactive in their settlement discussions and build upon the progress that has already been made. To help increase the chances of reaching an amicable agreement, Dina helps parties develop a clear action plan in advance of post-mediation contact.

A key benefit of mediation, including Dina’s post-mediation follow-up service, is that it is a flexible process that may be tailored to the needs of the parties involved. Concerning post-mediation communication specifically, the parties may advise Dina of any progress made since the initial mediation’s conclusion to ensure that the one-hour follow-up is maximized. Regardless of whether additional progress has been made, parties can decide what outstanding issues they wish to continue negotiating and to what extent Dina’s services are required. For example, parties may only seek assistance sorting through only one of many issues that remain outstanding. In other cases, parties may determine that substantial mediator involvement is necessary, and additional mediations may be scheduled.

By engaging in post-mediation contact, parties can continue working on relationship preservation while addressing the issues that lead to the need for mediation in the first place. Dina’s follow-up service can help parties ensure that their agreement will be adhered to over time and may also be used to determine the steps that will be taken if unexpected challenges arise down the road. This time may also be used for parties to address any necessary modifications or resulting issues that might strain the newly formed resolutions.

Involvement of Disputing Parties

If parties want to avoid the need to litigate their remaining issues, it is vital for them to take time to understand why the initial mediation did not result in a mutual settlement. Further, it is also critical for parties to be prepared to revisit and reconsider their positions. A party’s position should be aligned with their desired outcome, and they should be prepared to make concessions to continue to work towards resolution.

Parties should also keep detailed notes of any progress made between them, between the initial mediation and the post-mediation follow-up. This empowers them to capitalize on the headway already gained throughout the process.

If the parties remain unable to progress further with mediation, they will typically proceed to the next stage of the litigation process. However, if the parties determine that further mediator involvement will be beneficial to their dispute resolution, they may seek additional assistance from Dina.

Dina Mejalli-Willis at Willis Business Law Provides Mediation Services Tailored to Your Needs

Willis Business Law offers parties comprehensive mediation services provided by managing partner Dina Mejalli-Willis. Mediation is a beneficial dispute resolution alternative available to parties seeking a mutually satisfactory resolution while effectively managing their time and costs. Dina offers both half-day and full-day mediation options to parties who are prepared to work together to overcome their differences. For those who participate in a full-day mediation but do not leave with an agreement, Dina also provides a one-hour follow-up service to help the parties build on their existing progress to resolve outstanding issues. To learn more about our mediation services, contact Willis Business Law online, call us at (519) 945-5470, or book your mediation session using Dina’s online scheduling calendar.

To maximize mediation efforts between disputing parties, having a mediator who understands the crux of the issues can make all the difference. A mediator’s role is to help parties in dispute reach a mutually beneficial settlement. Therefore, it is essential to choose a mediator who not only has a good understanding of the legal issues in a particular area of law but who also brings a unique and insightful perspective to the table. An effective mediator has the necessary personal and investigative skills to dig beyond the surface-level issues and determine what each party truly wants.

At Willis Business Law, our managing partner Dina Mejalli-Willis proudly offers mediation services to suit your needs. So, what makes Dina Mejalli-Willis stand out as a mediator?

Over 15+ Years of Industry Experience

Dina Mejalli-Willis has over 15+ years of experience in the legal field, a large portion of which was spent litigating in the personal injury sector. Drawing from this experience, Dina understands the unique issues that can arise and has insight into how the courts respond to certain positions. Therefore, counsel and their clients can draw on her knowledge and experience and use the mediator to their advantage.

Mediators can identify the strengths and weaknesses of arguments and offer candid suggestions about how they think the matter might be resolved at trial. A mediator’s input can be persuasive and may lead to concessions and settlements that may not have been possible if the case proceeded to trial. Therefore, choosing a mediator with knowledge and experience of the relevant subject – such as Dina – is beneficial.

Actively Monitors and Writes on Judicial and Legislative Developments

With extensive past experience litigating matters involving personal injury, disability claims, and Statutory Accident Benefits Schedules (SABS) disputes, Dina has and continues to remain immersed in the ever-evolving subject matter. By remaining fresh on these topics, Dina can help parties understand how new legislative changes and recent court decisions may impact the merits of a party’s argument or settlement position.

Throughout the years, Dina has undertaken extensive research to write several publications and articles on key topics involving personal injury and disability matters. Some of her recent publications include:

• “Strategies to Enhance an LTD Settlement”;
• “Settlements and Tax Issues: Important Implications”;
• “Things You Don’t Want to Miss When Settling LTD Cases”; and
• “Defining CAT Impairment: Advanced Research in SABS”.

Ability to Get to “Why”

Dina Mejalli-Willis draws from her years of experience in private practice and mediation to ensure that mediation sessions run smoothly and efficiently. To help parties make the most out of their mediation from the beginning, Dina works to get to the heart of the dispute quickly and cuts to the chase to understand the parties’ genuine concerns and hesitations. Parties are often encouraged to get creative in the mediation process to develop unique and mutually satisfactory resolutions to maximize these discussions and settlement opportunities. However, sometimes parties require extra assistance in dialing in on the prominent issues to understand better what they really want at the conclusion of the case.

By simplifying the situation and fostering an efficient mediation session, Dina ensures she is on the same page in understanding the parties’ priorities, placing her in a better position to assist in exploring resolutions. Through her experiences in litigation and alternative dispute resolution, Dina can quickly synthesize mountains of information and boil it down to the fundamental issues that must be focused on.

Flexible Mediation Settings

While mediation has traditionally been a means of alternative dispute resolution that occurred in person, as a result of the pandemic, the Ontario courts have allowed means of alternative dispute resolution to take place virtually. While traditional in-person mediation settings remain preferred by many, allowing this process to occur remotely via a trusted online platform, such as Zoom, removes barriers such as cost and travel, which otherwise may be prohibitive for some individuals. Dina has quickly adapted to these new processes and is confident that allowing parties to participate in mediation from a comfortable, private setting can encourage ample opportunities for parties to maximize their mediation experience. To learn more about the benefits of virtual mediation, read our recent blog post.

In the event that parties wish to attend an in-person mediation but do not have a suitable neutral space to facilitate an effective mediation, Dina is happy to offer spacious settings with private, comfortable offices at Willis Business Law.

Post-Mediation Follow-Up Service

Dina strongly believes in resolving matters outside the courtroom and is proud to offer her full-day mediation clients a unique post-mediation follow-up service. Because time is of the essence concerning a party’s settlement position, in cases where mediation does not result in a successful settlement, Dina will provide the parties with an additional 1-hour meeting to explore further settlement opportunities.

For parties willing to continue productive settlement discussions, Dina can develop a clear follow-up action plan showcasing her urgency and diligence in exploring possible resolutions for complex issues.

Work With Dina Mejalli-Willis at Willis Business Law in Windsor-Essex County for Your Mediation Needs

Willis Business Law proudly offers comprehensive mediation services provided by managing partner Dina Mejalli-Willis. Mediation is an essential tool available to parties seeking to reach a beneficial resolution while managing the costs and time commitments of all parties involved. Dina happily offers half-day and full-day mediation services to parties who are prepared to work together to create a mutually agreeable outcome for a variety of disputes. Contact Willis Business Law online or at (519) 945-5470 to learn more about our mediation services. To easily book your mediation session today, feel free to consult Dina’s online scheduling calendar.

Mediation is often a voluntary form of alternative dispute resolution that does not focus on fault determination. Instead, it is a valuable tool available to parties seeking to save on costs and time and who are interested in reaching a confidential, negotiated settlement to resolve an ongoing dispute. However, all parties must arrive at the mediation prepared and open to making concessions to maximize their chances of success. So, how can counsel and clients make the most out of their mediation?

Dina Mejalli-Willis’ Top 5 Mediation Tips

Willis Business Law offers comprehensive mediation services provided by managing partner Dina Mejalli-Willis. Dina draws from her years of experience in private practice and mediation to ensure that mediation sessions run smoothly and efficiently. The following are Dina’s top five tips on how to make the most out of your mediation:

1. Prepare, prepare and prepare some more

It is essential for counsel to prepare for and treat the mediation just as they would any other case proceeding through litigation. Both counsel and their clients should have a clear line of communication leading up to mediation. This allows counsel to receive their client’s instructions and, therefore, arrive better prepared to address potential sticking points at the session. Preparation ensures counsel have a comprehensive understanding of the case and better understand their client’s interests and needs, which is particularly beneficial in time-limited mediation.

It is crucial for lawyers to appropriately manage their client’s expectations regarding the mediation process and potential outcomes. It is important to have frank conversations with clients about the merits and risks of their position. Clients should also have an understanding of the informality and confidential nature of a mediation. Parties who arrive at mediation prepared to reach an agreement often see successful outcomes.

If the case does not settle at mediation, the parties often leave with a better understanding of the issues and the merits of their arguments. This preparation will also help counsel prepare for the subsequent steps in the litigation process.

2. Keep your mediation briefs succinct

Preparing a strong and compelling mediation brief is essential. However, ensuring that the mediation brief is succinct is just as important. Having undertaken necessary research and being able to hone in on the critical issues and relevant arguments makes a mediation brief easily digestible. It not only benefits opposing counsel in clearly understanding the other party’s arguments, but it also helps the mediator facilitate the mediation, by ensuring that key issues are addressed, and creating opportunities for resolution.

Mediation briefs are the only information that a mediator sees before arriving at the mediation. Therefore, drafting a mediation brief highlighting strong arguments in an easy-to-read format along with supporting evidence, allows the mediator to understand the contentious issues and assess the strengths of each party’s position.

3. Disclose important information early

To come to the table prepared and willing to negotiate, each party must know enough to be comfortable and trusting in the mediation process. Therefore, the parties must exchange pertinent information early and provide their mediation briefs as soon as possible. Not only does this aid the parties in understanding the other’s position, but it also allows sufficient time for the mediator to prepare for the mediation.

Additionally, counsel must be aware that when dealing with certain parties, such as insurance companies, they must allow sufficient time for their brief and expert reports to follow the chain of command for the purpose of obtaining the appropriate authority to settle the dispute. If the individuals who can provide authority to make settlement offers have insufficient time to review the opposing party’s documentation, the mediation can theoretically be over before it starts resulting in waste of time and money to all involved.

4. Arrive with an open mind

Despite adequate preparation by the parties, mediation can easily fail if a party is not prepared to make reasonable concessions. Therefore, it is essential to arrive at a mediation with an open mind and ready to make and consider reasonable offers and contributions. Parties who come in good faith and are prepared to take action to resolve outstanding issues can easily be deterred when the other party has already decided that they are not prepared to move from their position.

It is important to make the most of early opportunities to settle, including at mediation. During these times, all of the parties are thinking about the case and are seeking to resolve the dispute in a safe and neutral setting. Settling a case early provides time and financial benefits and eliminates a party’s risk as the case progresses toward trial. Mediation encourages the parties to be self-aware and look inward for possible problem-solving solutions. Also, it allows for a safe space to speak and mend relationships that may have been damaged in the dispute.

5. Use the mediator to your advantage

While it may seem obvious, parties often fail to use the mediator to their advantage. Mediation is a way to create a forum between the disputing parties to allow for open discussions regarding the issues and understand the reasons behind each party’s position. At mediation, allowing the client to speak to the mediator, express their needs and hesitations, and gain a new perspective on their position can be essential. To ensure that these discussions and settlement opportunities are maximized, the mediator will often encourage parties to be creative in coming up with unique resolutions that are mutually satisfactory.

Mediators can speak to various strengths and weaknesses of arguments and provide candid insight as to how they think the matter may be decided at trial. While the mediator does not make decisions for the parties, their input can be persuasive. For these reasons, choosing a mediator with knowledge and experience on the relevant subject is beneficial.

Schedule Your Mediation With Dina Mejalli-Willis at Willis Business Law in Windsor-Essex County

Willis Business Law proudly offers mediation services provided by managing partner Dina Mejalli-Willis. In her role as a mediator, Dina helps parties facilitate cost-effective, timely, and risk-free discussions to resolve various disputes. To learn more about our comprehensive mediation services, contact Dina Mejalli-Willis or schedule your mediation session using her online scheduling calendar. To contact Willis Business Law, complete our online form or call our office at (519) 945-5470.

Mediation is an informal, private, and cost-effective method for those involved in a dispute. It is an effective dispute resolution method for reaching an agreement via facilitation by a neutral third party without requiring intervention by the court. While it is often considered an optional and amicable branch of alternative dispute resolution, several legal disputes in Ontario require mandatory mediation.

This blog post will provide an overview of the Ontario Mandatory Mediation Program, exceptions to the program, and the benefits of mediation.

Ontario’s Mandatory Mediation Program

In Ontario, the Mandatory Mediation Program is intended to support parties as they work together to resolve their disputes as quickly as possible outside of court. It also helps all parties save on crucial resources, such as time and money. Matters are referred to mediation early in the litigation process, allowing parties time to determine the issues in dispute. Working with a trained mediator can help the parties explore various settlement options and develop creative resolutions to avoid the pre-trial and trial processes.

Under Rule 24.1 of the Rules of Civil Procedure, most civil lawsuits commenced in the County of Essex (Windsor) and the cities of Toronto and Ottawa must proceed through mandatory mediation. Rule 75.1 of the Rules of Civil Procedure expanded the Mandatory Mediation Program to cover disputes regarding estates, trusts, and matters concerning substitute decision-making.

Beyond the Mandatory Mediation Program, section 258.6 of the Insurance Act empowers a plaintiff or defendant in a motor vehicle accident claim to request the parties participate in a mediation.

The Mandatory Mediation Process

The Mandatory Mediation Program includes clear timelines and procedural steps to ensure the mediation process (and litigation as a whole) moves promptly.

Mediations must take place 180 days after defence is filed (30 days in estate matters)

Claims falling under the mandatory mediation rules (except estate files) must proceed to mediation within 180 days after the first defence/answer to the claim has been filed. This timeline can be altered on the parties’ consent within those 180 days or if the court orders a different date.

The process differs for estates, trusts, or substitute decision matters requiring mandatory mediation. In those cases, the party who started the legal proceedings must, within 30 days of filing their claim, file a motion asking the court for directions. The court will decide the timeframe for mediation and which party bears responsibility for the mediation process.

Mediators can be chosen by parties or local mediation coordinator

Mandatory mediation can be conducted by a mediator on the program roster or a non-roster mediator on the parties’ consent. In cases where the parties fail to prove that mediation was conducted within 180 days after the first defence was filed, the local mediation coordinator may assign a mediator to keep the matter moving forward. In such cases, the coordinator will send the parties a Notice by Assigned Mediator to inform them of the mediator’s name, as well as the date and time of the mediation.

In estate, trusts, and substitute decision matters, parties must select a mediator within 30 days of the court order giving directions on the mediation process. If the parties cannot agree on a mediator within the 30-day deadline, the party responsible for the carriage of the mediation will request the local mediation coordinator assign a mediator.

Preparing a Statement of Issues

The parties must provide the mediator with a Statement of Issues no later than seven (7) days before the mediation date. This statement sets out the matters at issue in the case and the parties’ positions. It also includes any relevant documents the parties believe the mediator should have at their disposal.

Failing to provide a Statement of Issues or missing the mediation date can result in the mediator filing a Certificate of Non-Compliance with the court, leading to potential penalties and cancellation fees.

In estate, trusts, or substitute decision cases, the Statement of Issues uses a different form and must be provided to the mediator at least seven days before the mediation.

Flexibility in Mediator Choice

When preparing for mediation, choosing a trusted and experienced mediator is essential to help facilitate settlement discussions creatively and collaboratively. Mediators are expected to conduct themselves professionally and create a comfortable environment for all parties.

Given recent amendments to the Rules of Civil Procedure and the implementation of virtual mediations, parties now have access to many more qualified mediators across the province without having to consider additional factors such as travel and accommodation. This new flexibility allows parties to ensure that they are selecting the most qualified mediator for their case and helps reassure clients that they are getting the most out of the mediation.

Exceptions to Mandatory Mediation in Ontario

Rule 24.1.04(4) of the Rules of Civil Procedure sets out various exceptions to mandatory mediation in Ontario, including:

• Family law matters;
• Estates, trusts, and substitute decision actions exempted from mediation by order of the court;
• Certain disputes mediated under the Insurance Act;
• Claims under the Construction Act, aside from trust claims;
• Certified class action proceedings under the Class Proceedings Act;
• Actions under the Bankruptcy and Insolvency Act;
• Actions in Toronto placed on the Commercial List (a process overseen by a group of judges experienced in complex commercial matters);
• Mortgage actions (Rule 64); and
• Actions exempt from mandatory mediation pursuant to a court order (Rule 24.1.05).

While some proceedings do not fall within the Mandatory Mediation Program, attending voluntary mediation is still encouraged in cases where it is appropriate. Further, courts may order parties to attend mediation if the issue does not require immediate judicial intervention.

Dina Mejalli-Willis Provides Professional Mediation Services in Windsor-Essex County & Across Ontario

Whether your matter falls under the Mandatory Mediation Program or you want to resolve a dispute outside of the courtroom, Willis Business Law proudly offers mediation services provided by managing partner Dina Mejalli-Willis. We understand the importance of encouraging parties to work together to resolve their disputes in the most efficient manner possible, and we can offer mediation services in person or virtually. We utilize all available resources to provide comprehensive and accessible mediation services and strive to help parties reach a successful outcome. To learn more about mediation, contact Dina Mejalli-Willis or schedule your mediation session using her convenient scheduling calendar.

After the global pandemic brought rapid change to many aspects of the legal landscape, many temporary practice directions were welcomed by practitioners. While courts had once been required to restrict in-person operations to protect the health of the individuals involved, the benefits of the ongoing ability to conduct specific processes virtually, including mediation, have not been lost.

Clients, counsel and the courts have benefited from the convenience, cost-savings and time-efficiency of virtual participation in alternative dispute resolution. While some may seek to return to in-person processes, virtual mediation has several benefits that should not be overlooked.

Key Benefits to Virtual Mediations

Mediation is an essential and effective form of alternative dispute resolution used in various legal proceedings. Throughout the pandemic, teleconferencing and videoconferencing proved to be an efficient means of communication and allowed for legal proceedings to continue as scheduled. There are many reasons why these tools should continue to be embraced by legal professionals and clients in respect of mediation and alternative dispute resolution services.

Significant Cost Reduction

Since their inception, virtual mediations have taken place via various technological mechanisms, such as teleconferences and video conferences. The flexibility available to allow parties to participate in virtual mediations from anywhere has significantly reduced the costs accompanying traditional in-person mediations.

Virtual mediation relieves parties of the additional steps of planning and paying for various costs, including travel, transportation and accommodation. Virtual mediation requires counsel to be present for a shorter time, resulting in reduced legal fees for some clients. With the prospect of a smaller financial burden, more parties may be encouraged to participate in mediation as a means of dispute resolution.

Increased Flexibility and Engagement

During in-person mediation, lawyers and mediators are expected to be in a particular location for a set time. For many, this can give the illusion of an “all or nothing” approach to the mediation, which may contribute to an unsuccessful mediation. A benefit of virtual mediation, beyond the cost reduction, is requiring participants to only carve out a portion of their day which has been set aside for mediation. Outside this time, clients can go about their usual daily routine, and counsel can manage other ongoing matters.

For individuals who may be reluctant to travel or attend in-person meetings due to health concerns, disability, or other personal reasons, virtual mediations remove such barriers. Further, virtual mediation does not limit a party’s choice of a mediator to their immediate geographical location, providing them with access to a variety of mediators with various experiences to choose from.

If mediation continues beyond the scheduled time allotment, there is less fear of participants feeling forced to stay in a location away from home. Virtual mediation allows for more time for the process and enables all involved to remain focused on the mediation rather than thinking about what they need to do or where they need to get to next.

Simple and Efficient

In legal proceedings, time is of the essence to parties, counsel and the courts. When the pandemic required the world to become technology literate quickly, issues and barriers were identified and resolved, leaving us with streamlined, accessible, and effective communication. The ability to quickly join a meeting from an office or living room provides a significant scheduling advantage. Further, rescheduling a mediation or scheduling subsequent sessions is often easier and can be done more quickly, given the fewer commitments that come with virtual attendance.

Currently, many lawyers and clients continue to use remote meeting technology to communicate, accommodate parties’ unique needs, and feel comfortable doing so. Therefore, where a telephone or video conferencing software is used by many people several times per day, it makes sense to continue to utilize this familiar means of communication in an effort to quickly resolve disputes and keep matters out of the courts when possible.

Comfort and Environment

Being able to access mediation virtually allows clients to participate from a place of comfort and familiarity, such as their home. Driving to a downtown office or being surrounded by legal professionals in a traditional setting may be uncomfortable and intimidating for some clients. Because of this, engagement and success during the virtual mediation process may be increased. Being in a comfortable environment can substantially increase a party’s willingness to participate, make concessions and better articulate important points.

In some circumstances, it may be appropriate for parties to be in separate areas from each other to allow for the client’s comfort and facilitate honest discussions regarding sensitive subject matter.

Where software accessibility and reliable internet may pose an issue to clients, they may instead attend the mediation from their counsel’s office.

Dina Mejalli-Willis Provides Accessible, Supportive Mediation Services in Windsor-Essex County

Willis Business Law is proud to offer mediation services, including virtual mediation, provided by managing partner and experienced litigator, Dina Mejalli-Willis. By providing lawyers and clients with fair and accessible mediation services, parties can feel assured that all options and resources will be utilized to work toward a successful settlement. To schedule a mediation with Dina, counsel and clients and invited to use her scheduling calendar here.

Willis Business Law is pleased to announce that Dina Mejalli-Willis has expanded her practice to include services as a mediator throughout Windsor-Essex County. Mediation allows parties to litigation to retain decision-making power throughout the dispute resolution process. A skilled mediator remains neutral when communicating and reframing parties’ positions and ensures settlement conversations stay on track while helping generate unique solutions for all parties to consider.  

A managing partner with over 17 years of experience as a successful litigator, Dina has helped clients strategically manage risk and effectively resolve disputes. Dina has advocated on behalf of clients before all levels of court in Ontario and has appeared before various tribunals across the province. 

Her extensive experience and successful representation in alternative dispute resolution have equipped Dina with the knowledge, skills and resources to provide insightful mediation services for a range of cases, including property damage, personal injury and disability claims. Dina understands the importance of efficient dispute resolution and draws on her experience to help facilitate productive and meaningful discussions between parties.

Contact Dina-Mejalli Willis for Reputable & Effective Mediation Services

Dina Mejalli-Willis offers half-day and full-day mediations. Mediations can be conveniently scheduled through Dina’s online booking system. To learn more about our competitive rates and cancellation policy, click here. And be sure to look out for future mediation blogs!

Dina is a managing partner of Willis Business Law, a leading business, employment, and labour law firm based in the heart of Windsor, Ontario. The firm services clients throughout Windsor-Essex County and the surrounding areas, including Amherstburg, Chatham-Kent, Essex, Kingsville, Lakeshore, LaSalle, Leamington, Pelee and Windsor. To contact the firm, reach out online or call 519-945-5470.