What is the Ontario Mandatory Mediation Program?
Portions of the following information have been obtained from the Ontario Attorney General's Office.
The Ontario Mandatory Mediation Program started on January 4, 1999 in Toronto and Ottawa/Carleton. It is expected to expand throughout Ontario over the next several years. The Program was designed to help parties involved in civil litigation and estates matters attempt to settle their cases before they get to trial and save both time and money.
Many parties negotiate during litigation. Many lawsuits settle just before getting to the trial stage. Under the Ontario Mandatory Mediation Program, cases are referred to a mediation session early in the litigation process to give parties an opportunity to discuss the issues in dispute. With the assistance of a trained mediator, the parties explore settlement options and may be able to avoid the costly pretrial and trial process.
Civil actions that are subject to case management are referred to mandatory mediation. Case management is a system in which the court supervises cases and imposes strict timelines on their movement through the litigation process. Certain civil actions, such as family law cases, are excluded from mandatory mediation. Estates, trusts and substitute decisions matters are also referred to mandatory mediation.
What is mediation?
Mediation is one way for people to settle disputes or lawsuits outside of court. In mediation, a neutral third party - the mediator - helps the disputing parties look for a solution that works for them.
Mediators, unlike judges, do not decide cases or impose settlements. The mediator's role is to help the people involved in a dispute to communicate and negotiate with each other in a constructive manner, to gain a better understanding of the interests of all parties, and to find a resolution based on common understanding and mutual agreement.
The purpose of mediation is not to decide who wins and who loses, but to develop creative solutions to disputes in a way that is not possible at a trial.
What are the benefits of mediation?
Mediation often leads to resolutions that are tailored to the needs of all parties. Generally, the best solution to a problem is one worked out by the parties themselves.
Many people find mediation more satisfying than a trial because they play an active role in resolving their dispute, rather than having a solution determined by a judge.
The mediation process is informal and completely confidential. Parties in mediation may speak more openly than in court. Many people find mediation a more comfortable and constructive process than a trial.
In situations where the parties have an ongoing relationship, mediation is particularly helpful because it promotes cooperative problem-solving and improved communications.
How does a mediation work?
The mediation may be held at any location that is convenient and acceptable to the parties, including the mediator's office, the office of one of the parties or one of the lawyers, or at the court facilities.
For the mediation to proceed, parties must have authority to settle the case or have ready telephone access to anyone whose approval is needed to settle. If a corporation, partnership or other organization is a claimant or a defendant, it should be represented by an individual who is authorized to make a decision on its behalf.
The parties, their lawyers and the mediator are the only ones who have a right to be present in mediation. No one else may attend without the parties' consent. What is said remains private. Information arising from the mediation cannot be used outside the mediation for any court purpose.
Before the mediation session begins, the mediator explains the mediation process and reviews the terms of the mediation, which may be set out in a written "agreement to mediate".
Although mediation is an informal process, the mediator structures the discussion. All parties have an opportunity to present their side of the story, to explain what is important to them and to ask questions. The mediator will help the parties to explore settlement options. The mediator may meet separately with each of the parties either before the session begins or during the session.
The length of a mediation session and the number of sessions required depend on the complexity of the case, how well the parties have prepared for the mediation, how far they have progressed in settlement discussions and whether the mediation process is working.
Under the Ontario Mandatory Mediation Program, parties are not required to continue mediation for more than three hours. Of course, the mediator may end the mediation before that time if the case is settled or if he or she concludes that the process is not constructive for the parties.
If the mediation is not concluded within three hours, the mediator may, with the consent of all parties, continue the session. Agreements resolving some or all of the issues in dispute must be in writing and signed by the parties or their lawyers.
If the agreement settles the case, the defendant or the defendant's lawyer must file a notice with the court advising of the settlement within 10 days of the agreement being signed (or, in the case of a conditional agreement, within 10 days of the condition being satisfied).
Agreements reached at mediation are legally binding. If a party fails to comply with a signed agreement, any other party to the agreement may make a motion for judgment under the terms of the agreement or continue the legal proceedings as if there had been no agreement.
What if the case does not settle at the mediation?
Settlement of the lawsuit is not the only positive outcome of a mediation. A mediation is considered successful even if the parties do not settle but gain a better understanding of the other side's position, if they have narrowed the issues or settled some of the issues, or if they have agreed on a process to resolve issues later in the proceedings. Lawsuits that do not settle at mediation continue through the court process.
What happens after the mediation session?
After the mediation session, the mediator must complete and file a report on the outcome of the mediation. The report does not contain any information about what happened or what was said at the session.
If any party fails to submit a Statement of Issues or to attend within the first 30 minutes of the mediation session, the mediator may cancel the mediation session and file a Certificate of Non-Compliance. The party responsible for the cancellation will be required to pay any cancellation fees charged by the mediator and may be subject to sanctions imposed by the court.
Who pays for mediation?
All parties share the cost of the mediation session. Parties pay mediators directly for their services. Each party is required to pay an equal share of the mediator's fees unless the court orders a different allocation of the fees.
Under Rule 24.1, mediation services will be provided at no cost to individuals who either have a legal aid certificate or meet the Ministry of the Attorney General's financial eligibility requirements. More information can be obtained by contacting the Local Mediation Coordinator.
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