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.

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