The Return of Meaningful Mandatory Mediation Rules

The Return of Meaningful Mandatory Mediation Rules

In recent years, the vast majority of civil actions that are commenced are settled prior to trial. While there are opportunities for settlement throughout the course of a lawsuit, the process of mediation provides a highly beneficial opportunity for settlement discussions and, ultimately, resolution of a claim.

Mediation Is a Form Of Alternative Dispute Resolution

In mediation, a neutral third party – the mediator – helps to facilitate settlement discussion so that, hopefully, the parties are able to reach a resolution of the lawsuit. The mediator has no authority to impose a settlement on either side.

While previously, under the Rules of Civil Procedure, mediation was a mandatory part of litigation within the first few months of litigation; currently, mediation is only required within 90 days after an action is set down for trial (in other words, relatively late in the proceeding).

However, effective January 1, 2010, mediation will, once again, become mandatory early on in a lawsuit.

“New” Actions:

According to the new Rules, mediation will be mandatory in all “new” actions (commenced on or after January 1, 2010) in Ottawa-Carleton, the County of Essex (Windsor) and Toronto. In particular, according to the new Rules, mediation must take place within 180 days (3 months) of the filing of the first Statement of Defence. The parties may extend the time for mediation on consent or by court Order following a motion.

“Old” Actions:

With respect to “old” actions (those commenced before January 1, 2010), according to the new Rules, mediation must be held by June 30, 2010. Again, the parties may extend the time for mediation on consent or by court Order.

What does this mean for you?

While we have always strived to move our cases towards resolution with minimal delay, the new Rules regarding mandatory mediation will assist in moving your lawsuit forward more efficiently, and with even less delay, than may have previously been the case. For one thing, while defence counsel previously may have been reluctant to schedule a mediation in any given case, he or she will likely be more inclined to agree to scheduling a mediation given that such is deemed mandatory (with only few exceptions).

While it may be necessary to agree to a short delay in scheduling mediation in order to allow more time to prepare the case for settlement, obtain documents, or wait for a particular mediator-of-choice who may not be available for several months, we are optimistic that the new regime will assist in swifter resolutions within personal injury and disability litigation.

By Janice Grevler, B.A., L.L.B.

Associate Lawyer, Share Lawyers

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