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Rule 24.1 of the Rules of Civil Procedure establishes mandatory mediation for case managed civil, non-family actions. Rules 24.1 and 75.1 apply in Toronto, Ottawa and Windsor. Rule 75.1 brings contested estates, trusts and substitute decisions matters within mandatory mediation.

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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 determine who wins and who loses, but to develop creative solutions to disputes in a way that is not possible at a trial.

What is the Ontario Mandatory Mediation Program?

The Ontario Mandatory Mediation Program started on January 4, 1999 in Toronto and Ottawa, and in Windsor on December 31, 2002. The Program is designed to help parties involved in civil litigation and estates matters attempt to settle their cases before they get to trial, thereby saving both time and money.

Many parties negotiate during the course of litigation. Over 90 percent of all lawsuits settle 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 pretrial and trial process.

Under Rule 24.1, 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 pretrial and trial process. Certain civil actions, such as family law cases, are excluded from mandatory mediation. Under Rule 75.1, contested estates, trusts and substitute decisions matters are referred to mandatory mediation.

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 Rule 24.1 work?

• Civil, case-managed actions (except family cases) that are defended are referred to mediation. Cases may be exempted only if the parties obtain a court order.
• The mediation is conducted by a private-sector mediator. Parties may agree to select a mediator from the Program's roster of mediators or one who is not on the roster. This decision must be made within 30 days after the first defence is filed.
• If the parties cannot agree on a mediator, one will be appointed for them by the Local Mediation Coordinator, who is responsible for administering the Program.
• The mediation must take place within 90 days after the first defence is filed, unless the court orders otherwise. However, parties in a standard track action may agree to postpone the mediation for an additional 60 days by filing a consent with the Local Mediation Coordinator.
• At least 7 days before the mediation, parties must provide the mediator and the other parties to the lawsuit with a Statement of Issues, which identifies the issues in dispute and the parties' positions and interests. The pleadings and any documents of central importance to the case must be included.

How does Rule 75.1 work?

• Proceedings relating to estates, trusts and substitute decisions are referred to mediation, unless there is a court order exempting them.
• Within 30 days after the last day for serving a notice of appearance, applicants are required to bring a motion for directions relating to the conduct of the mediation.
• At the motion for directions, the court may direct such matters as: the issues to be mediated, who has carriage of the mediation, the timeframe for conducting the mediation, which parties are designated to attend the mediation, how the designated parties are to be notified of the mediation, and how the cost of the mediation is to be shared among the parties.
• Following the motion for directions, parties are required to select a mediator within 30 days of the court order giving directions.
• The mediation is conducted by a private-sector mediator. Parties may agree to select a mediator from the Program's roster of mediators or one who is not on the roster. The party with carriage of the mediation is required to give the selected mediator a copy of the order giving directions.
• If the parties fail to select a mediator within 30 days, the party with carriage of the mediation must immediately file with the Local Mediation Coordinator a request to assign a mediator.
• The mediator, whether assigned or selected, is required to immediately fix a date for the mediation and, at least 20 days before that date, serve on every designated party a notice of the place, date and time of the mediation.
• At least 7 days before the mediation, designated parties must provide the mediator and the other designated parties with a Statement of Issues.

Where is the mediation held?

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.

Who attends the mediation?

All parties must attend the mediation session. If a party is represented by a lawyer, the lawyer must also attend. A lawyer may not attend in the place of a party.

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.

What happens during a mediation session?

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.

How long is the mediation session?

The length of a mediation session and the number of sessions required depend on a variety of factors, including 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.

What if an agreement is reached at the mediation?

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 is the mediator's responsibility 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.

What if parties do not comply with the requirements of mandatory mediation?

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. Under Rule 75.1, the court may order 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.

How much does mediation cost?

Mediation fees are set by government. The mediator's fees, which cover one hour of preparation time and a mediation session of up to three hours, cannot exceed the amount shown below. (Note: These fees do not include the cost of a party's lawyer.)

If the session is not concluded within three hours, the mediation may continue, with the consent of all parties, at a rate agreed upon by the parties and the mediator in advance of the session.

In addition to fees, a mediator may charge expenses that the parties agree to before the mediation begins. However, according to a court ruling, assigned mediators who reside outside the county where the litigation was initiated cannot charge travel expenses.

Where is the roster of mediators available?

The roster may be obtained from:

• the Office of the Local Mediation Coordinator (see address at the end of this brochure)
• Superior Court of Justice Offices in Toronto, Ottawa and Windsor
• the Ministry of the Attorney General web site at: www.attorneygeneral.jus.gov.on.ca/english/courts/manmed

What should parties consider in choosing a mediator?

Both lawyers and non-lawyers are qualified and trained to mediate disputes. It is important that all parties are comfortable with their mediator. Parties and/or their lawyers are strongly encouraged to contact mediators directly to obtain information about such matters as:

• the mediator's training, experience, knowledge about the court process, and familiarity with the kinds of issues involved in the lawsuit
• the mediator's approach to mediation
• the mediator's fees and expenses
• the mediator's references

How can parties prepare for mediation?

To get the maximum benefit from mediation it is important to think about the case realistically and creatively. Before the mediation, parties who are represented should work with their lawyers to prepare for a session that will be cooperative and productive. Parties might consider these questions in preparing for mediation:

• What is the best result each party can hope for in the lawsuit and what is the worst result that could happen?
• What is each party trying to accomplish by the lawsuit? What is really important to each of them?
• What are the main concerns of the other parties and how can they be addressed?
• Are there any solutions to the dispute that can reconcile the interests of all parties?
• Are there any limits on each party's ability to settle?
• What will happen if the case does not settle at mediation?

What is the lawyer's role in mediation?

The lawyer's role may include:

• advising the client about and ensuring compliance with the Mandatory Mediation Program
• advising the client about the selection of a mediator
• preparing and submitting the Statement of Issues
• preparing the client for effective participation in the mediation session
• providing legal and strategic advice during the mediation process
• participating in the mediation process in good faith
• protecting the client's legal interests in connection with any agreement reached

How will lawyers prepare their clients for mediation?

Lawyers are aware that the parties participate directly and actively in mediation. To prepare a party for mediation, the lawyer will:

• describe the mediation process and what will happen at the session
• explain what is expected of the client
• remind the client that the objective of the mediation is not to "win", but to reach a satisfactory resolution
• discuss mediation strategies
• ensure that the client or client's representative has authority to settle
• discuss the costs, risks and benefits of not reaching a settlement
• ensure that the client is conversant with the facts and issues of the case
• examine the strengths and weaknesses of each party's case, both on the facts and on the law
• explore the client's position, goals and interests
• attempt to understand what the interests of the other parties might be
• advise the client on how to best put forward his or her interests
• advise the client about any confidential information which should not be disclosed
• work with the client to prepare an opening statement

How can lawyers assist clients during the mediation session?

Throughout the session, the lawyer can help the client by gauging the client's reactions and suggesting breaks where appropriate. During breaks in the session, the lawyer can discuss any observations about the progress of the session and advise the client on negotiation tactics and possible compromise solutions, where appropriate.

What happens after the mediation session?

Where the case settles completely or partially, the lawyer will review any agreement reached to ensure that it meets the client's interests and is legally binding.

Where the case does not settle, or certain issues remain outstanding, the lawyer will analyze the discussions that took place during the mediation and provide the client with advice concerning the next steps, which may include:

• consideration of the need for further mediation or other alternative dispute resolution processes
• requesting an early case conference for direction of the litigation
• preparation for trial
• compliance with any undertakings or agreements made at the mediation
• consideration of settlement options that were explored, but not adopted, at the session

For more information about the Ontario Mandatory Mediation Program, please contact the Local Mediation Coordinator:

Windsor

245 Windsor Avenue
Windsor, ON N9A 1J2
Tel: (519) 973-6620
Fax: (519) 971-7207
Email: linda.peltier@jus.gov.on.ca

Toronto

393 University Ave., 19th Flr
Toronto, ON M5G 1E6
Tel: (416) 314-8365
Fax: (416) 314-1360
Email: susan.mignardi@jus.gov.on.ca

Ottawa

161 Elgin Street, 2nd Flr
Ottawa, ON K2P 2K1
Tel: (613) 239-1135
Fax: (613) 239-1075
Email: lorraine.roy@jus.gov.on.ca

Or access the Ministry of the Attorney General's web site:

www.attorneygeneral.jus.gov.on.ca/english/courts/manmed